THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


THE    CONTINENTAL 
LEGAL   HISTORY    SERIES 

VOLUME  Two 


GREAT  JURISTS   OF   THE  WORLD 


The  Continental  Legal  History  Series 

Published  under  the  auspices  of  the 

Association  of  American  Law  Schools 


L  A  GENERAL  SURVEY  OF  EVENTS,  SOURCES,  PERSONS, 
AND  MOVEMENTS  IN  CONTINENTAL  LEGAL  HISTORY. 
By  VARIOUS  AUTHORS.  Translated  by  RAPELJE  HOWELL,  F.  S. 
PHILBRICK,  JOHN  WALGREN,  and  JOHN  H.  WIGMORE.  $6.00  net. 

II.  GREAT  JURISTS  OF  THE  WORLD,  FROM  GAIUS  TO  VON 
IHERING.     By  VARIOUS  AUTHORS.     Illustrated.     (Extra  volume. 
By  arrangement  with  John  Murray,  London.)     $5.00  net. 

III.  HISTORY  OF  FRENCH  PRIVATE  LAW.    By  J.  BRISSAUD,  late 
of  the  University  of  Toulouse.     Translated  by  RAPELJE  HOWELL,  of 
the  New  York  Bar.     $5.00  net. 

IV.  HISTORY    OF    GERMANIC    PRIVATE    LAW.      By  RUDOLPH 
HUEBNER,  of  the  University  of  Rostock.    Translated  by  DR.  FRANCIS 
S.  PHILBRICK,  of  New  York,  N.  Y.     $4.50  net. 

V.  HISTORY  OF  CONTINENTAL  CRIMINAL  PROCEDURE.   By 
A.  ESMEIN,  late  of  the  University  of  Paris,  with  chapters  by  FRANCOIS 
GARRAUD,  of  the  University  of  Lyon,  and  C.  J.  A.  MITTERMAIER,  late 
of  the  University  of  Heidelberg.     Translated  by  JOHN  SIMPSON,  of 
the  New  York  Bar.     $4.50  net. 

VI.  HISTORY  OF  CONTINENTAL  CRIMINAL  LAW.    By  LUDWIG 
VON  BAR,  late  of  the  University  of  Gottingen.    Translated  by  THOMAS 
S.  BELL,  of  the  Pasadena,  Cal.,  Bar.    $4.00  net. 

VII.  HISTORY    OF    CONTINENTAL    CIVIL    PROCEDURE.      By 
ARTHUR  ENGELMANN,  late  Chief  Justice  of  the  Court  of  Appeals  at 
Breslau,  with  a  chapter  by  E.  GLASSON,  late  of  the  University  of  Paris. 
Translated    by  ROBERT  W.  MILLAR,  of  Northwestern  University. 
$4.00  net. 

VIH.  HISTORY  OF  ITALIAN  LAW.  By  CARLO  CALISSE,  of  the  Italian 
Council  of  State.  Translated  by  JOHN  LISLE,  of  the  Philadelphia 
Bar.  $5.00  net. 

IX.  HISTORY  OF  FRENCH  PUBLIC  LAW.    By  J.  BRISSAUD,  late  of 
the  University  of  Toulouse.     Translated  by  JAMES    W.  GARNER,  of 
the  University  of  Illinois.     $4.50  net. 

X.  HISTORY  OF  CONTINENTAL  COMMERCIAL  LAW.    By  PAUL 
HUVELIN,   of  the  University  of   Lyon.     Translated  by  ERNEST  G. 
LORENZEN,  of  the  University  of  Wisconsin.     $5.50  net. 

XI.  THE  EVOLUTION  OF  LAW  IN  EUROPE.    By  GABRIEL  TARDE, 
RAOUL  DE  LA  GRASSERIE,  and  others.    $5.00  net. 


'ura  doces  papules,  ceyua  libranda  bilnnce 
rtcata  tui 


BARTOLUS 


Frontispiece 


THE    CONTINENTAL    LEGAL    HISTORY    SERIES 

Published  under  the  auspices  of  the 
ASSOCIATION   OF   AMERICAN   LAW   SCHOOLS 


GREAT  JURISTS  OF 
THE  WORLD 


EDITED    BY 

SIR  JOHN   MACDONELL 

FELLOW   OF  THE   BRITISH   ACADEMY 
AND 

EDWARD   HANSON 

SECRETARY  OF  THE   SOCIETY  OF  COMPARATIVE   LEGISLATION 

WITH  AN  INTRODUCTION  BY 

VAN   VECHTEN   VEEDER 

JUDGE   OF  THE   UNITED  STATES  DISTRICT   COURT,   NEW   YORK 


WITH    PORTRAITS 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 
1914 


ERNST  FREUND,  Professor  of  Law  in  the  University  of  Chicago. 

ERNEST  G.  LORENZEN,  Professor  of   Law  in  the  University  of 
Wisconsin. 

WM.  E.  MIKELL,  Professor  of  Law  in  the  University  of  Penn 
sylvania. 

MUNROE   SMITH,  Professor  of  Jurisprudence  in  Columbia  Uni- 
versity. 

JOHN  H.  WIGMORE,  Chairman,  Professor  of  Law  in  Northwestern 
University. 


LIST  OF  TRANSLATORS 

THOMAS  S.  BELL,  of  the  Los  Angeles  Bar. 

JAMES    W.   GARNER,    Professor   in   the   State    University   of 
Illinois. 

RAPELJE  HOWELL,  of  the  New  York  Bar. 

JOHN  LISLE,  of  the  Philadelphia  Bar. 

ERNEST  G.  LORENZEN,  of  the  Editorial  Committee. 

ROBERT  W.  MILLAR,  of  the  Chicago  Bar,  Lecturer  in  Northwest- 
ern University. 

FRANCIS  S.  PHILBRICK,  of  the  New  York  Bar. 

JOHN  SIMPSON,  of  New  York. 

JOHN  WALGREN,  of  the  Chicago  Bar. 

JOHN  H.  WIGMORE,  of  the  Editorial  Committee. 


I  might  instance  in  other  professions  the  obligation  men  lie  under  of 
applying  themselves  to  certain  parts  of  History;  and  I  can  hardly  for- 
bear doing  it  in  that  of  the  Law,  —  in  its  nature  the  noblest  and  most 
beneficial  to  mankind,  in  its  abuse  and  debasement  the  most  sordid  and 
the  most  pernicious.  A  lawyer  now  is  nothing  more  (I  speak  of  ninety- 
nine  in  a  hundred  at  least),  to  use  some  of  Tully's  words,  "nisi  leguleius 
quidem  cautus,  et  acutus  praeco  actionum,  cantor  formularum,  auceps 
syllabarum."  But  there  have  been  lawyers  that  were  orators,  philoso- 
phers, historians:  there  have  been  Bacons  and  Clarendons.  There  will 
be  none  such  any  more,  till  in  some  better  age  true  ambition,  or  the  love 
of  fame,  prevails  over  avarice;  and  till  men  find  leisure  and  encourage- 
ment to  prepare  themselves  for  the  exercise  of  this  profession,  by  climb- 
ing up  to  the  vantage  ground  (so  my  Lord  Bacon  calls  it)  of  Science, 
instead  of  grovelling  all  their  lives  below,  in  a  mean  but  gainful  applica- 
tion of  all  the  little  arts  of  chicane.  Till  this  happen,  the  profession  of  the 
law  will  scarce  deserve  to  be  ranked  among  the  learned  professions.  And 
whenever  it  happens,  one  of  the  vantage  grounds  to  which  men  must 
climb,  is  Metaphysical,  and  the  other,  Historical  Knowledge.  HENRY 
ST.  JOHN,  Viscount  BOLINGBROKE,  Letters  on  the  Study  of  History  (1739). 

Whoever  brings  a  fruitful  idea  to  any  branch  of  knowledge,  or  rends 
the  veil  that  seems  to  sever  one  portion  from  another,  his  name  is  written 
in  the  Book  among  the  builders  of  the  Temple.  For  an  English  lawyer 
it  is  hardly  too  much  to  say  that  the  methods  which  Oxford  invited  Sir 
Henry  Maine  to  demonstrate,  in  this  chair  of  Historical  and  Comparative 
Jurisprudence,  have  revolutionised  our  legal  history  and  largely  trans- 
formed our  current  text-books. — Sir  FREDERICK  POLLOCK,  Ba^t.,  The 
History  of  Comparative  Jurisprudence  (Farewell  Lecture  at  the  Univer- 
sity of  Oxford,  1903). 

No  piece  of  History  is  true  when  set  apart  to  itself,  divorced  and  iso- 
lated. It  is  part  of  an  intricately  pieced  whole,  and  must  needs  be  put 
in  its  place  in  the  netted  scheme  of  events,  to  receive  its  true  color  and 
estimation.  We  are  all  partners  in  a  common  undertaking,  —  the  illumi- 
nation of  the  thoughts  and  actions  of  men  as  associated  in  society,  the 
life  of  the  human  spirit  in  this  familiar  theatre  of  cooperative  effort  in 
which  we  play,  so  changed  from  age  to  age,  and  yet  so  much  the  same 
throughout  the  hurrying  centuries.  The  day  for  synthesis  has  come.  No 
one  of  us  can  safely  go  forward  without  it.  —  WOODROW  WILSON,  The 
Variety  and  Unity  of  History  (Address  at  the  World's  Congress  of  Arts 
and  Science,  St.  Louis,  1904). 


CONTINENTAL  LEGAL  HISTORY  SERIES 
GENERAL   INTRODUCTION   TO   THE    SERIES 

"ALL  history,"  said  the  lamented  master  Maitland,  in  a  memo- 
rable epigram,  "is  but  a  seamless  web;  and  he  who  endeavors  to 
tell  but  a  piece  of  it  must  feel  that  his  first  sentence  tears  the 
fabric." 

This  seamless  web  of  our  own  legal  history  unites  us  inseparably 
to  the  history  of  Western  and  Southern  Europe.  Our  main  interest 
must  naturally  center  on  deciphering  the  pattern  which  lies 
directly  before  us,  —  that  of  the  Anglo-American  law.  But  in 
tracing  the  warp  and  woof  of  its  structure  we  are  brought  inevi- 
tably into  a  larger  field  of  vision.  The  story  of  Western  Continental 
Law  is  made  up,  in  the  last  analysis,  of  two  great  movements, 
racial  and  intellectual.  One  is  the  Germanic  migrations,  planting 
a  solid  growth  of  Germanic  custom  everywhere,  from  Danzig 
to  Sicily,  from  London  to  Vienna.  The  other  is  the  posthumous 
power  of  Roman  law,  forever  resisting,  struggling,  and  coalescing 
with  the  other.  A  thousand  detailed  combinations,  of  varied 
types,  are  developed,  and  a  dozen  distinct  systems  now  survive 
in  independence.  But  the  result  is  that  no  one  of  them  can  be 
fully  understood  without  surveying  and  tracing  the  whole. 

Even  insular  England  cannot  escape  from  the  web.  For,  in 
the  first  place,  all  its  racial  threads  —  Saxons,  Danes,  Normans  — 
were  but  extensions  of  the  same  Germanic  warp  and  woof  that 
was  making  the  law  in  France,  Germany,  Scandinavia,  Nether- 
lands, Austria,  Switzerland,  Northern  Italy,  and  Spain.  And, 
in  the  next  place,  its  legal  culture  was  never  without  some  of  the 
same  intellectual  influence  of  Roman  law  which  was  so  thoroughly 
overspreading  the  Continental  peoples.  There  is  thus,  on  the 
one  hand,  scarcely  a  doctrine  or  rule  in  our  own  system  which  can- 
not be  definitely  and  profitably  traced  back,  in  comparison,  till 
we  come  to  the  point  of  divergence,  where  we  once  shared  it  in 
common  with  them.  And,  on  the  other  hand,  there  is,  during  all 
the  intervening  centuries,  a  more  or  less  constant  juristic  socia- 
bility (if  it  may  be  so  called)  between  Anglo-American  and  Con- 

ix 


CONTINENTAL   LEGAL   HISTORY   SERIES 

tinental  Law;  and  its  reciprocal  influences  make  the  story  one 
and  inseparable.  In  short,  there  is  a  tangled  common  ancestry, 
racial  or  intellectual,  for  the  law  of  all  Western  Europe  and  ourselves. 

For  the  sake  of  legal  science,  this  story  should  now  become  a 
familiar  one  to  all  who  are  studious  to  know  the  history  of  our 
own  law.  The  time  is  ripe.  During  the  last  thirty  years  Euro- 
pean scholars  have  placed  the  history  of  their  law  on  the  footing 
of  modern  critical  and  philosophical  research.  And  to-day,  among 
ourselves,  we  find  a  marked  widening  of  view  and  a  vigorous 
interest  in  the  comparison  of  other  peoples'  legal  institutions. 
To  the  satisfying  of  that  interest  in  the  present  field,  the  only 
obstacle  is  the  lack  of  adequate  materials  in  the  English  language. 

That  the  spirit  of  the  times  encourages  and  demands  the  study 
of  Continental  Legal  History  and  all  useful  aids  to  it  was  pointed 
out  in  a  memorial  presented  at  the  annual  meeting  of  the  Asso- 
ciation of  American  Law  Schools  in  August,  1909: 

"The  recent  spread  of  interest  in  Comparative  Law  in  general  is 
notable.  The  Comparative  Law  Bureau  of  the  American  Bar  Associa- 
tion; the  Pan-American  Scientific  Congress;  the  American  Institute 
of  Criminal  Law  and  Criminology;  the  Civic  Federation  Conference 
on  Uniform  Legislation;  the  International  Congress  of  History;  the 
libraries'  accessions  in  foreign  law,  —  the  work  of  these  and  other 
movements  touches  at  various  points  the  bodies  of  Continental  law. 
Such  activities  serve  to  remind  us  constantly  that  we  have  in  English 
no  histories  of  Continental  law.  To  pay  any  attention  at  all  to  Con- 
tinental law  means  that  its  history  must  be  more  or  less  considered. 
Each  of  these  countries  has  its  own  legal  system  and  its  own  legal 
history.  Yet  the  law  of  the  Continent  was  never  so  foreign  to  Eng- 
lish as  the  English  law  was  foreign  to  Continental  jurisprudence. 
It  is  merely  maintaining  the  best  traditions  of  our  own  legal  litera- 
ture if  we  plead  for  a  continued  study  of  Continental  legal  history. 

"  We  believe  that  a  better  acquaintance  with  the  results  of  modern 
scholarship  in  that  field  will  bring  out  new  points  of  contact  and 
throw  new  light  upon  the  development  of  our  own  law.  Moreover, 
the  present-day  movements  for  codification,  and  for  the  reconstruc- 
tion of  many  departments  of  the  law,  make  it  highly  desirable  that 
our  profession  should  be  well  informed  as  to  the  history  of  the  nine- 
teenth century  on  the  Continent  in  its  great  measures  of  law  reform 
and  codification. 

"  For  these  reasons  we  believe  that  the  thoughtful  American  lawyers 
and  students  should  have  at  their  disposal  translations  of  some  of 
the  best  works  in  Continental  legal  history." 

And  the  following  resolution  was  then  adopted  unanimously  by 
the  Association: 


CONTINENTAL   LEGAL   HISTORY    SERIES 

"That  a  committee  of  five  be  appointed,  on  Translations  of  Conti- 
nental Legal  History,  with  authority  to  arrange  for  the  translation 
and  publication  of  suitable  works." 

The  Editorial  Committee,  then  appointed,  spent  two  years  in 
studying  the  field,  making  selections,  and  arranging  for  trans- 
lations. It  resolved  to  treat  the  undertaking  as  a  whole;  and  to 
co-ordinate  the  series  as  to  (1)  periods,  (2)  countries,  and  (3) 
topics,  so  as  to  give  the  most  adequate  survey  within  the  space- 
limits  available. 

(1)  As  to  periods,  the  Committee  resolved  to  include  modern 
times,  as  well  as  early  and  medieval  periods;   for  in  usefulness 
and  importance  they  were  not  less  imperative  in  their  claim  upon 
our  attention.    Each  volume,  then,  was  not  to  be  merely  a  valu- 
able torso,  lacking  important  epochs  of  development;    but  was 
to  exhibit  the  history  from  early  to  modern  times. 

(2)  As  to  countries,  the  Committee  fixed  upon  France,  Ger- 
many, and  Italy  as  the  central  fields,  leaving  the  history  in  other 
countries  to  be  touched  so  far  as  might  be  incidentally  possible. 
Spain  would  have  been  included  as  a  fourth;  but  no  suitable  book 
was  in  existence;    the  unanimous  opinion  of  competent  scholars 
is  that  a  suitable  history  of  Spanish  law  has  not  yet  been  written. 

(3)  As  to  topics,  the  Committee  accepted  the  usual  Continental 
divisions  of  Civil  (or  Private),  Commercial,  Criminal,  Procedural, 
and  Public  Law,  and  endeavored  to  include  all  five.    But  to  repre- 
sent these  five  fields  under  each  principal  country  would  not  only 
exceed  the  inevitable  space-limits,  but  would  also  duplicate  much 
common  ground.    Hence,  the  grouping  of  the  individual  volumes 
was  arranged  partly  by  topics  and  partly  by  countries,  as  follows: 

Commercial  Law,  Criminal  Law,  Civil  Procedure,  and  Criminal 
Procedure,  were  allotted  each  a  volume;  in  this  volume  the  basis 
was  to  be  the  general  European  history  of  early  and  medieval 
times,  with  special  reference  to  one  chief  country  (France  or 
Germany)  for  the  later  periods,  and  with  an  excursus  on  another 
chief  country.  Then  the  Civil  (or  Private)  Law  of  France  and 
of  Germany  was  given  a  volume  each.  To  Italy  was  then  given 
a  volume  covering  all  five  parts  of  the  field.  For  Public  Law  (the 
subject  least  related  in  history  to  our  own),  a  volume  was  given 
to  France,  where  the  common  starting  point  with  England,  and 
the  later  divergences,  have  unusual  importance  for  the  history 
of  our  courts  and  legal  methods.  Finally,  three  volumes  were 
allotted  to  general  surveys  indispensable  for  viewing  the  connec- 

xi 


CONTINENTAL   LEGAL   HISTORY   SERIES 

tion  of  parts.  Of  these,  an  introductory  volume  deals  with  Sources, 
Literature,  and  General  Movements,  —  in  short,  the  external 
history  of  the  law,  as  the  Continentals  call  it  (corresponding  to 
the  aspects  covered  by  Book  I  of  Sir  F.  Pollock  and  Professor 
F.  W.  Maitland's  "  History  of  the  English  Law  before  Edward  I ") ; 
another  sets  forth  the  historic  parts  played  by  the  great  jurists ; 
and  a  final  volume  analyzes  the  specific  features,  in  the  evolution 
of  doctrine,  common  to  all  the  modern  systems. 

Needless  to  say,  a  Series  thus  co-ordinated,  and  precisely  suited 
for  our  own  needs,  was  not  easy  to  construct  out  of  materials 
written  by  Continental  scholars  for  Continental  needs.  The 
Committee  hopes  that  due  allowance  will  be  made  for  the  diffi- 
culties here  encountered.  But  it  is  convinced  that  the  ideal  of 
a  co-ordinated  Series,  which  should  collate  and  fairly  cover 
the  various  fields  as  a  connected  whole,  is  a  correct  one;  and  the 
endeavor  to  achieve  it  will  sufficiently  explain  the  choice  of  the 
particular  materials  that  have  been  used. 

It  remains  to  acknowledge  the  Committee's  indebtedness  to 
all  those  who  have  made  this  Series  possible. 

To  numerous  scholarly  advisers  in  many  European  universities 
the  Committee  is  indebted  for  valuable  suggestions  towards 
choice  of  the  works  to  be  translated.  Fortified  by  this  advice, 
the  Committee  is  confident  that  the  authors  of  these  volumes 
represent  the  highest  scholarship,  the  latest  research,  and  the 
widest  repute,  among  European  legal  historians.  And  here  the 
Committee  desires  also  to  express  its  indebtedness  to  Elbert  H. 
Gary,  Esq.,  of  New  York  City,  for  his  ample  provision  of 
materials  for  legal  science  in  the  Gary  Library  of  Continental 
Law  (in  Northwestern  University).  In  the  researches  of  prep- 
aration for  this  Series,  those  materials  were  found  indispensable. 

To  the  authors  the  Committee  is  grateful  for  their  willing 
co-operation  in  allowing  this  use  of  their  works.  Without  ex- 
ception, their  consent  has  been  cheerfully  accorded  in  the 
interest  of  legal  science. 

To  the  publishers  the  Committee  expresses  its  appreciation 
for  the  cordial  interest  shown  in  a  class  of  literature  so  impor- 
tant to  the  higher  interests  of  the  profession. 

To  the  translators,  the  Committee  acknowledges  a  particular 
gratitude.  The  accomplishments,  legal  and  linguistic,  needed  for 
a  task  of  this  sort  are  indeed  exacting;  and  suitable  translators 
are  here  no  less  needful  and  no  more  numerous  than  suitable 


xu 


CONTINENTAL   LEGAL   HISTORY    SERIES 

authors.  The  Committee,  on  behalf  of  our  profession,  acknowl- 
edges to  them  a  special  debt  for  their  cordial  services  on  behalf 
of  legal  science,  and  commends  them  to  the  readers  of  these  vol- 
umes with  the  reminder  that  without  their  labors  this  Series 
would  have  been  a  fruitless  dream. 

So  the  Committee,  satisfied  with  the  privilege  of  having  intro- 
duced these  authors  and  their  translators  to  the  public,  retires 
from  the  scene,  bespeaking  for  the  Series  the  interest  of  lawyers 
and  historians  alike. 

THE  EDITORIAL  COMMITTEE. 


xm 


CONTENTS 

PAGE 

EDITORIAL  COMMITTEE  AND  LIST  OF  TRANSLATORS v 

GENERAL  INTRODUCTION  TO  THE  CONTINENTAL  LEGAL  HISTORY 

SERIES ix 

EDITORIAL  PREFACE.    BY  SIR  JOHN  MACDONELL xxi 

INTRODUCTION.    BY  VAN  VECHTEN  VEEDER    .           xxvii 


GAIUS.    BY  JAMES  CRAWFORD  LEDLIE 1 

PAPINIAN.    BY  E.  C.  CLARK 17 

DOMITIUS   ULPIAN.    BY  JAMES  CRAWFORD  LEDLIE 32 

BARTOLUS.     BY  THE  LATE  SIR  WILLIAM  RATTIGAN 45 

ANDREA  ALCIATI  AND  HIS  PREDECESSORS.    BY  COLE- 
MAN  PHILLIPSON 58 

JACQUES  CUJAS.    BY  COLEMAN  PHILLIPSON 83 

ALBERICUS  GENTILIS.    BY  COLEMAN  PHILLIPSON 109 

FRANCIS  BACON,  BARON  VERULAM.     BY  JAMES  E.  G.  DE 

MONTMORENCY 144 

HUGO  GROTIUS.     BY  THE  LATE  SIR  WILLIAM  RATTIGAN    .    .  169 

JOHN  SELDEN.     BY  EDWARD  HANSON 185 

THOMAS  HOBBES.     BY  JAMES  E.  G.  DE  MONTMORENCY  ...  195 

RICHARD  ZOUCHE.    BY  COLEMAN  PHILLIPSON 220 

JEAN  BAPTISTS  COLBERT.     BY  H.  A.  DE  COLYAR 248 

GOTTFRIED   WILHELM  VON   LEIBNITZ.      BY  SIR  JOHN 

MACDONELL 283 

SAMUEL  VON  PUFENDORF.     BY  COLEMAN  PHILLIPSON  ...  305 

GIOVANNI   BATTISTA  VICO.     BY  MICHAEL  RAFFERTY  ...  345 

xvii 


XV111  CONTENTS 

PAGE 

CORNELIUS  VAN  BYNKERSHOEK.  BY  COLEMAN  PHILLIP- 
SON 390 

CHARLES  LOUIS  DE  SECONDAT,  BARON  DE  LA  BREDE 
ET  DE  MONTESQUIEU.  BY  SIR  COURTENAY  ILBERT  ....  417 

ROBERT  JOSEPH  POTHIER.     BY  JAMES  E.  G.  DE  MONT- 

MORENCY 447 

EMERICH  DE  VATTEL.    BY  COLEMAN  PHILLIPSON 477 

C^SAR  BONESANA,  MARQUIS  DI  BECCARIA.    BY  T.  BRIDG- 

WATER 505 

WILLIAM    SCOTT,  LORD  STOWELL.    BY  NORMAN  BENTWICK    517 
JEREMY   BENTHAM.    BY  JOHN  MAXCY  ZANE 532 

CARL   JOSEPH   ANTON    MITTERMAIER.     BY  LEVIN  GOLD- 
SCHMIDT     544 

FRIEDRICH   CARL   VON    SAVIGNY.      BY  JAMES  E.  G.  DE 

MONTMORENCY 561 

RUDOLPH  VON  IHERING.    BY  SIR  JOHN  MACDONELL  ....     590 
INDEX  .  601 


LIST  OF  ILLUSTRATIONS 

BARTOLUS Frontispiece 

TO   FACE  PAGE 

ALCIATI 58 

CUJAS 83 

BACON 144 

GROTIUS 169 

SELDEN 185 

HOBBES 195 

COLBERT 248 

LEIBNITZ 283 

PUFENDORF 305 

BYNKERSHOEK 390 

MONTESQUIEU 416 

POTHIER 447 

BECCARIA 505 

STOWELL 517 

BENTHAM 532 

MITTERMAIER 544 

SAVIGNY 560 

IHERING  590 


EDITORIAL  PREFACE 


IN  his  Nova  Methodus  discendce  docendceque  Jurisprudentice  Leibnitz 
describes  a  catalogue  of  Desiderata,  and  mentions  among  them  the 
publication  of  lives  of  the  great  jurists.1  More  than  two  centuries 
have  passed  without  the  suggestion  bearing  fruit.  Only  Leibnitz, 
with  his  encyclopaedic  knowledge,  could  have  adequately  carried 
out  his  proposal;  but  it  appeared  to  me  that  an  attempt  might 
be  made  by  several  writers  to  give  effect  in  some  form  to  the 
long-neglected  suggestion.  The  result  was  this  book,  most  of 
the  contents  of  which  appeared  in  a  series  of  articles  published 
in  the  Journal  of  Comparative  Legislation. 

I  have  been  asked  to  add  to  this  collection  of  lives  of  emi- 
nent jurists  a  brief  introduction  or  prefatory  note.  Perhaps  no 
preface  is  needed;  the  book  explains  and,  I  hope,  justifies  itself. 
I  do  not  claim  that  it  carries  out  strictly  a  precise  plan.  Each 
writer  has  been,  within  certain  wide  limits,  free  to  deal  with  his 
subject  as  he  deemed  fit,  and  in  his  own  way;  each  is,  conse- 
quently, responsible  for  his  own  contribution.  Complete  unity 
in  the  mode  of  treatment  there  is  not.  Not  only  the  lives  of 
the  jurists,  but  their  chief  works  are  described;  and  the  book, 
though  not  a  history  of  jurisprudence,  may  be  a  help  to  a  de- 
scription of  the  great  movements  of  jurisprudence  which  form 
no  small  part  of  the  life  of  every  people. 

Some  of  the  biographies  are  based  upon  materials  either  new 
or  little  used ;  none  of  them  are  mere  summaries  of  existing  works. 
Not  a  few  points  of  importance  are  for  the  first  time  elucidated. 
I  might  refer,  for  example,  to  the  lives  of  Gaius,  Papinian, 
Alciati,  Cujas,  Hobbes,  and  Bacon.  It  has  been  usual  in  writing 
the  history  of  jurisprudence  to  omit  the  jurists.  The  book  will 
have  fulfilled  one  of  its  purposes  if  it  helps  somewhat  to  correct 
the  habit  of  describing  doctrines  apart  from  their  historical  setting 
and  the  time  in  which  their  expounders  lived.  The  Zeitgeist  is 

1  Dutens,  Opera,  iv.,  217.  Leibnitz's  Desiderata  were  to  some  extent 
suggested  by  Bacon's  Desiderata  mentioned  in  the  Increase  of  Learning. 


EDITORIAL    PREFACE 

much ;  so  also  is  the  personality  of  jurists.  We  know  how  partic- 
ular judges  in  our  own  times  have  influenced  the  development  of 
certain  branches  of  law.  That  is  true  of  the  past.  The  develop- 
ment of  English  law  would  not  have  been  the  same  as  it  has  been 
if  there  had  been  no  Coke  or  Mansfield,  or  if  Bacon  instead  of 
the  former,  Buller  instead  of  the  latter,  had  at  momentous  periods 
presided  over  the  King's  Bench.  To  know  what  manner  of  man 
was  Cujas,  or  Grotius,  or  Ihering,  is  a  help  to  understand  his 
teaching. 

The  volume,  beginning  with  Gaius  and  Papinian,  and  ending 
with  Ihering,  ranges  over  a  period  of  nearly  two  thousand  years, 
and  the  collection  includes  accounts  of  the  representatives  of 
four  great  periods  of  jurisprudence:  (1)  The  period  in  which 
Roman  law  was  fully  developed;  (2)  that  in  which  it  was  re- 
garded as  the  common  law  of  Continental  countries;  (3)  the 
period  of  the  supremacy  of  natural  law  in  its  many  forms;  (4) 
the  age  of  codes  and  legislation. 

The  collection  includes  jurists  who  were  innovators,  such  as 
Grotius;  distinguished  practising  lawyers,  such  as  Zouche  and 
Bynkershoek;  reformers,  such  as  Mittermaier  and  Bentham; 
philosophic  jurists,  such  as  Leibnitz  and  Vico.  Many  jurists  of 
influence  and  importance  are  necessarily  omitted  for  lack  of  space ; 
but  the  omissions  may  some  day  be  supplied  in  an  additional 
volume.  My  hope  would  be  that,  supplemented  by  a  brief  narra- 
tive connecting  the  various  lives,  this  book  would  form  the  out- 
lines of  a  history  of  jurisprudence.  As  it  is,  it  attempts  to  do 
what  has  not  been  done  before. 

The  volume  tells  of  a  score  of  men  of  different  ages  who  looked 
at  jurisprudence  from  different  points  of  view,  and  had  very 
different  conceptions  of  its  provisions.  Some  readers,  noting 
these  differences,  and  Observing  the  contrast  between  the  lofty 
pretensions  of  the  earlier  jurists  and  those  of  the  modern,  will 
perhaps  ask  the  question:  "Is  the  history  of  jurisprudence  in 
substance  a  history  of  disillusion?  Has  it  any  lesson  to  com- 
municate? Has  it  outlived  its  work?  Have  we  got  much  be- 
yond the  opening  words  of  the  Institutes:  'Juris  praecepta  sunt 
hsec:  honeste  vivere,  alterum  non  Iredere,  suum  cuique  tribuere '?  " 
Compare  the  definition  of  Ulpian  with  that,  say,  of  Austin,  and 
we  see  a  remarkable  change.  Perhaps  the  jurist  who  once  held 
a  place  second  only  to  that  of  the  theologian  must  retire  with 
the  latter  to  a  lower  position.  Jurisprudence  cannot  in  a  literal 


EDITORIAL    PREFACE  XX111 

sense  be  "divinarum  atque  humanarum  rerum  notitia,  justi 
atque  injusti  scientia."  Some  may  think  it  merits  the  gibes  of 
Mephistopheles  in  Faust.1 

Jurists  cannot  again  occupy  the  position  enjoyed  by  Bar- 
tolus  and  Cujas,  to  the  former  of  whom  was  given  the  privilege 
that  he  and  his  descendants  who  were  professors  of  law  should 
"have  the  power  of  legitimizing  their  pupils  in  case  of  bastardy 
or  of  relieving  them  from  the  disabilities  of  minority"  (p.  50). 
Their  teaching  cannot,  for  many  reasons,  be  what  it  once  was. 
Their  functions  have  changed  and  are  changing,  and  in  these 
ways  among  others:  in  the  first  place  there  is  a  division  of  mat- 
ters once  dealt  with  under  jurisprudence.2  It  is  no  longer,  after 
the  manner  of  Leibnitz  and  Vico,  inextricably  mixed  with  ethics 
and  philosophy.  The  latter  taught  tutto  scibile,  and  called  it 
jurisprudence.  He  made  it  a  reproach  that  Grotius  had  severed 
jurisprudence  from  theology.  Modern  jurisprudence  is  secu- 
larized— i.e.,  separated  from  theology,  and  to  a  certain  extent 
from  ethics.  Then,  too — and  it  is  the  second  great  change — 
the  wide  extent  and  activity  of  legislation  have  narrowed  the 
field  of  the  jurist.  Where  he  was  permitted  to  be  a  sub-legislator 
he  is  reduced  to  the  position  of  an  interpreter — often  an  in- 
terpreter working  in  fetters — subject  always  to  this:  that  if 
the  legislature  has  the  power,  the  jurist  has,  as  to  much,  the 
knowledge. 

There  is  a  further  class  of  changes  in  operation.  Jurisprudence 
has  to  adjust  itself  to  psychology;  by  which  I  mean  that  all  the 
roots  of  law  have  to  be  investigated,  and  not,  as  in  the  past,  only 
a  few;  that  its  origin  is  not  to  be  found  solely  or  perhaps  chiefly 
in  the  commands  of  a  superior;  that  we  must  look  to  the  motives 
which  urge  people  without  pressure  to  adopt  certain  rules  and 
to  carry  them  out,  and  note  the  impulse  of  the  civilised  man  to 
conform  to  law  and  order.  Further,  jurisprudence  must  adjust 
itself  to  sociology;  no  purely  legal  analysis  of  social  relations  is 
complete;  they  are  not  wholly  explicable  by  juristic  methods 
or  to  be  all  included  in  juristic  categories,  such  as  contracts, 
express  or  implied.3  Society  consists  of  men  living  together 
and  co-operating  in  many  ways  and  from  many  motives,  selfish 
and  sympathetic,  with  ties  ethical,  economic,  traditional;  and 
sociology,  not  jurisprudence,  must  give  the  explanation  of  this 

1  See  Kirchmann's  Kritik  der  Rechtswissenschaft,  568. 

2  Wundt,  Logik,  iii.  1.  3  Wundt,  Logik,  iii.  533. 


EDITORIAL    PREFACE 

consensus  and  harmony.  The  former  science  (if  such  it  be  at 
present)  may  help  us  to  explain  how  all  the  social  forces  are 
connected  and  co-operate. 

Jurisprudence  has  also  to  tell  that  which  until  lately,  owing  to 
the  absence  of  the  necessary  data,  was  wrapt  in  obscurity — the 
process  of  evolution  of  law.  It  must  explain  the  various  stages 
through  which  law  passes — e.g.,  continue  the  work  of  Maine, 
Bastian,  and  Post;  the  stage  in  which  symbolism  is  universal; 
that  in  which  form  and  the  letter  are  all  powerful;  the  stage  at 
which  law  is  in  the  main  customary.1  It  must  explain  the  sepa- 
ration of  jurisprudence  from  religion  and  ethics,  and  their  true 
relation;  it  must  show  how  international  law  was  no  happy 
accident  or  clever  invention,  but  an  inevitable  growth. 

A  further  difficult  task  awaits  the  jurist.  Several  legal  cate- 
gories and  conceptions  must  be  reshaped  to  meet  new  facts  and 
new  ideas.  Thus,  the  conception  of  property  is  no  longer  what 
it  was.  It  is  subject  to  many  new  limitations — so  many  in  the 
case  of  land  that  one  may  say  that  the  rights  of  the  first  occupier 
and  those  acquired  through  him  are  now  everywhere  limited  by 
the  rights  of  the  last-comer.2  The  jurist  is  called  upon  to  de- 
fine, if  he  can,  "a  fair  rent,"  "a  fair  wage,"  "a  minimum  wage," 
and  "a  reasonable  length  of  working  day."  Read  the  test  of 
monopolies  which,  according  to  English  common  law,  are  lawful 
as  distinguished  from  those  which,  being  unreasonably  in  re- 
straint of  trade,  are  unlawful;  then  turn  to  an  analysis  in  a 
modern  book  of  political  economy  of  the  various  forms  of  monop- 
oly and  their  detrimental  and  beneficial  effects,  and  it  will  be 
seen  that  the  jurist  is  working  with  antiquated  definitions.  Juris- 
prudence has  to  find  a  firmer  basis  for  criminal  law,  a  more  satisfac- 
tory theory  of  punishment,  a  better  definition  of  such  kinds  of 
insanity  as  are  incompatible  with  responsibility.  Here,  too,  the 
jurist  is  working  with  obsolete  or  imperfect  tools. 

The  latest  form  of  social  order  is  not  necessarily  the  final  or 
the  best,  and  the  jurist  has  to  help  in  the  process  of  transition 
and  reconstruction.  He  has  spoken  much  of  the  past;  he  is 
now  called  upon  to  solve  problems  hitherto  unknown. 

Even  as  to  the  humble  function  of  interpretation  of  enactments 
a  change  seems  imminent,  and  jurists  must  carry  it  out.  The 

1  See  as  to  the  domination  of  forms,  Ihering,  Geist  des  romischen,  Rechts, 
ii.  470. 

2  The  expression  is  used  by  Fouillce,  La  propriete  sociale,  p.  15. 


EDITORIAL    PREFACE  XXV 

rules  of  construction  employed  by  English  lawyers  and  those  of 
Continental  lawyers  for  ascertaining  the  intention  of  the  legisla- 
ture— the  former  keeping  to  the  letter  of  the  statute,  and  apply- 
ing certain  technical  rules;  the  latter  seeking  light  in  collateral 
documents  or  proceedings  at  which  the  former  would  not  look — 
cannot  both  be  right,  and  one  day  a  choice  must  be  made.1 

Still  the  great  task  of  jurists  remains  what  it  was  —  to  help, 
with  the  assistance  of  ethics,  to  answer,  when  the  law  is  silent 
or  ambiguous,  the  question:  "What  is  justice?"  That  answer 
cannot  be  expressed  in  terms  of  power  or  volition.  The  con- 
science of  man,  working  in  ever-changing  circumstances,  de- 
mands another  solution — a  demand  which  cannot  be  explained 
away. 

At  all  times  there  exists  a  sense  of  justice  which  approves  of 
some  kinds  of  legislation  and  condemns  others,  which  seeks  to 
create  a  Rechtsordnung.  In  some  societies  and  at  certain  times 
it  is  more  exigent  than  at  others.  It  does  not  always  speak  alike, 
but  at  all  times  it  has  to  be  reckoned  with.  A  law  which  con- 
demned the  accused  without  hearing  him,  which  took  away  prop- 
erty from  one  person  and  gave  it  to  another  selected  capriciously, 
or  which  made  laws  retrospective — such  a  measure  might  con- 
form to  all  statutory  requirements;  it  would  not  seem  the  less 
unjust.  Out  of  astrology  grew  astronomy;  out  of  alchemy,  chem- 
istry; in  the  false  conception  of  a  universal  immutable  law  may 
be  the  root  of  a  new  form  of  jurisprudence.  There  is  a  sense  in 
which  Ulpian's  famous  description  of  natural  law  may  still  be 
true.2 

Regarding  "the  great  jurists  of  the  world"  as  all  engaged, 
each  in  his  own  way  and  time,  in  one  task,  we  see  in  the  different 
persons  whose  lives  are  told  in  this  volume  a  certain  unity  of 
purpose  carried  on  for  nearly  two  thousand  years,  to  be  continued 
while  men  distinguish  between  good  and  evil. 

JOHN   MACDONELL. 

1  There  is  said  to  be  a  tendency  to  adopt  English  methods  (G6ny,  Melhode 
d' interpretation,  p.  257). 

2  See  Mr.  Ledlie's  Life  of  Ulpian;  also  Rumelin,  Reden,  Neue  Folge,  337; 
Stammler,  Die  Kidtur  der  Gegenwart,  2.  viii.,  p.  xliii. 


INTRODUCTION 


A  SURVEY  of  the  course  of  development  of  European  jurisprudence 
necessarily  presents  methods  and  points  of  view  somewhat  remote 
from  Anglo-American  experience.  This  selection  of  great  jurists 
of  the  world  has  been  made  with  particular  reference  to  inter- 
national repute.  But  an  international  reputation  as  a  jurist 
does  not  necessarily  signify  a  conspicuous  influence  upon  the 
actual  development  of  any  national  system  of  law,  and  a  selec- 
tion made  on  such  a  basis  passes  over  jurists  who,  upon  all  other 
grounds,  are  unquestionably  pre-eminent.  Lord  Mansfield  was 
one  of  the  greatest  jurists  known  to  legal  history,  although  his 
influence  was  exclusively  national.  The  selection  may  also  seem 
to  lend- undue  prominence  to  doctrinal  and  institutional  writers 
as  compared  with  jurists  whose  distinction  was  attained  in  the 
practical  administration  of  justice.  In  countries  where  the  formu- 
lation of  legal  principles  has  been  mainly  the  work  of  judges,  and 
largely  embodied  in  judicial  opinions,  the  conspicuous  type  of 
jurist  is  the  judge.  On  the  continent  of  Europe,  however,  legal 
development  took  another  course,  and  legal  literature,  systemati- 
cally pursued  as  a  branch  of  University  study,  obtained  a  direct 
and  controlling  influence  upon  the  decisions  of  the  courts. 

In  jurisprudence,  as  in  theology,  all  roads  lead  to  Rome.  The 
imposing  fabric  of  Roman  law  received  the  impress  of  those 
qualities  which  have  given  it  such  enduring  vitality  during  the 
early  period  of  the  Empire,  when  the  Roman  jurists  were  at  once 
the  makers,  the  expounders,  and  the  administrators  of  law  for 
the  civilized  world.  Roman  civil  law  had  already  been  liberal- 
ized and  vitalized  by  the  jus  gentium.  The  appointment  of  a 
prcetor  peregrinus  in  246  B.C.  was  designed  to  mitigate  the  exclu- 
siveness  of  the  jus  civile;  it  established  a  law  for  the  alien,  as  such. 
But  in  the  course  of  time  the  praetorian  edict  changed  the  form 
and  spirit  of  the  jus  civile  itself.  Being  in  fact  only  that  part  of 


INTRODUCTION 

the  Roman  law  which  was  in  accord  with  the  private  law  of 
other  peoples,  the  jus  gentium  came  to  be  regarded  as  the  universal 
law  of  mankind,  resting  upon  the  nature  of  things  and  the  general 
sense  of  equity  which  obtains  among  all  men.  The  jurists  who 
carried  on  the  development  of  Roman  law  in  succession  to  the 
praetorian  edict  had  always  occupied  a  unique  position.  While 
they  gave  advice  to  those  who  chose  to  consult  them,  and  delivered 
opinions  on  the  issues  involved  in  pending  litigation,  they  neither 
prepared  nor  argued  cases,  and  they  served  without  compensa- 
tion. Controversies  were  decided  at  Rome  by  private  citizens 
called  judices,  who  were  instructed  in  the  law  by  the  jurists,  as 
jurors  are  instructed  by  judges  in  our  tribunals.  When  at  length 
the  Emperor  conferred  upon  certain  jurists  the  right  of  respond- 
ing, these  authorized  jurists  approached  nearly  to  the  functions 
of  a  modern  judge.  Still,  although  jurists  occasionally  acted  as 
judices,  their  influence,  prior  to  the  second  century,  was  indirect. 
With  the  establishment  of  a  supreme  court  of  appellate  jurisdic- 
tion in  the  Imperial  Auditory  in  the  second  century,  jurists  desig- 
nated by  the  Emperor  to  act  in  his  name  performed  the  duties  of 
a  judge  in  the  modern  sense.  The  resulting  juristic  literature 
continued  to  exert  a  controlling  influence  upon  the  development 
of  the  law  until  the  Emperors  began  to  interfere  with  the  general 
effect  of  rescripts  issued  in  particular  cases.  The  last  vestige 
of  respect  for  judicial  precedent  was  destroyed  by  Justinian's 
enactment  that  no  judge  should  consider  himself  bound  to  follow 
any  decision  which  he  believed  to  be  erroneous,  for,  it  was  an- 
nounced, justice  must  be  administered  according  to  law,  not 
according  to  examples. 

The  final  form  of  Roman  legislation,  which  gave  to  the  civil 
law  the  shape  in  which  it  descended  to  the  modern  world,  was 
the  imperial  ordinance.  The  number  of  leges  and  senatus  con- 
sults was  slight  in  comparison  with  the  surviving  body  of  law 
enacted  by  the  Emperor  as  decisions  or  opinions  in  particular 
cases,  as  instructions  to  officials,  and  as  public  ordinances  or 
proclamations.  These  vast  legislative  and  judicial  functions  were 
discharged  mainly  by  a  council,  called  in  Diocletian's  time  the 
Consistorium,  composed  largely  of  jurists,  who  acted  as  assessors 
to  the  Emperor  in  the  hearing  of  causes  and  advised  him  in  legis- 
lation. 

For  centuries  after  the  death  of  Justinian  the  Corpus  Juris  was 
almost  lost  to  sight.  Of  the  Gothic  codes,  which  borrowed  much 


INTRODUCTION 

of  Roman  law,  but  neglected  its  real  spirit  as  found  in  the  Digest, 
Alaric's  Breviary  alone  exerted  wide  influence.  In  the  twelfth 
century  the  study  of  Roman  law  was  revived  by  Irnerius.  The 
Glossators  aimed  to  explain  difficult  passages,  and  their  work,  as 
collected  by  Accursius  in  1260,  constituted  the  staple  of  legal 
learning  for  centuries.  The  Glossators  were  animated  by  the 
belief  in  authority  characteristic  of  the  Middle  Ages,  and  their 
work  is  therefore  without  historical  perspective  ;  but  they  ren- 
dered a  service  of  great  value  in  collecting  and  preserving  the 
text  of  the  great  monuments  of  Roman  law. 

The  post-Glossators,  or  Bartolists,  applied  to  the  law  the 
methods  of  the  Schoolmen,  developing  the  comparatively  simple 
methods  of  their  predecessors  into  a  highly  artificial  system. 
While  they  contributed  little  of  importance  to  the  knowledge  of 
Roman  law,  they  undoubtedly  aided  in  adapting  it  to  a  later  age. 
To  Alciati  and  Cujas  we  are  indebted  for  the  methodical  presenta- 
tion of  Roman  law  as  a  portion  of  classical  antiquity.  By  direct- 
ing their  attention  to  the  sources,  and  studying  them  in  their 
historical  perspective,  they  contributed  materially  to  a  real 
understanding  of  the  subject.  The  influence  of  Alciati  and  Cujas 
in  the  direction  of  historical  and  positive  jurisprudence  soon  gave 
way,  however,  to  the  philosophical  conception  of  natural  law. 

(Natural  law  is  the  term  applied  to  the  Stoic  conception  of 
Nature  as  the  embodiment  of  universal  law.  The  development 
of  the  jus  gentium  brought  Roman  jurists  in  contact  with  Greek 
philosophy,  and  when  at  length,  under  Roman  dominion,  universal 
law  and  universal  citizenship  became  established  facts,  there  was 
a  close  approach  in  actual  conditions  to  the  Stoic  theory.  The 
conception  of  a  law  of  Nature  common  to  all  men  became  a  real 
influence  in  the  hands  of  Papinian  and  Ulpian,  whose  opinions 
had  the  force  of  law  throughout  the  civilized  world^  But  in  com- 
parison with  the  practical  aim  of  the  Roman  jurists  the  philo- 
sophical implication  was  vague.  In  the  Institutes  jus  naturale, 
as  used  by  Ulpian,  means  the  elementary  instincts  common 
to  man  and  animals  ;  in  another  passage  it  is  identified  with 
the  jus  gentium,  although  elsewhere  the  two  are  contrasted. 
The  jurists  generally  mean  by  jus  nalurale,  not  a  positive  law  or 
custom,  but  a  conception  of  ideal  justice  with  which  positive  law 
should  approximately  harmonize.  Its  influence  upon  the  civil 
law  was,  therefore,  not  so  much  in  supplying  specific  principles 
of  adjudication  as  in  the  direction  of  simplifying  and  harmonizing 


XXX  INTRODUCTION 

those  principles.,..  It  was  not  regarded  as  something  superior  to 
the  jus  civile,  for  it  was  founded  upon  the  jus  gentium  and  became 
valid  and  effective  only  when  adopted  as  part  of  the  jus  civile. 

(  When,  about  the  middle  of  the  sixteenth  century,  the  whole 
western  part  of  continental  Europe  recognized  Roman  law,  con- 
ditions were  again  favourable  to  the  philosophical  doctrine  of 
natural  law.  The  prevalence  and  power  of  Roman  law  was  not 
derived  from  the  sanction  of  any  distinct  authority.  It  was  a 
common  groundwork  of  ideas  and  method,  standing  towards  the 
positive  law  of  particular  countries  somewhat  in  the  same  rela- 
tion as  the  Roman  doctrine  of  jus  gentium  to  jus  civile  ;  for, 
although  Roman  law  was  said  to  be  the  common  law  of  the 
Empire,  its  actual  application  was  subject  to  modification  by  the 
custom  of  the  country  j  This  supremacy  of  Roman  law,  not  as  a 
system  actually  in  force,  but  as  a  type  assumed  by  actual  systems 
as  their  exemplar,  although  without  correspondence  in  detail  to 
any  of  them,  inevitably  led  to  reasoning  from  an  ideal  fitness  of 
things  and  to  the  depreciation  of  positive  authority.  At  length 
the  distinction  between  positive  law  and  theoretical  rules  evolved 
from  assumed  principles  was  almost  lost  to  sight,  and  the  idea, 
always  latent  in  the  theory,  that  human  law  which  is  not  in  har- 
mony with  natural  law  is  of  no  authority  was  ultimately  employed 
in  support  of  revolution. 

(  A  positive  conception  of  natural  law,  as  distinguished  from  the 
purely  negative  conception  of  natural  right,  involves  some 
demonstrable  and  authoritative  source.  The  Stoics  and  the 
ancients  generally  derived  natural  law  from  the  universal  nature, 
Aquinas  and  the  mediaeval  theologians  from  the  Divine  nature, 
Kant  and  other  modern  philosophers  from  human  nature!) 
Modern  thought  has  rejected  these  bases,  but  the  term  survives. 
The  fundamental  idea  which  underlies  the  variety  and  apparent 
diversity  of  the  applications  of  natural  law  is  doubtless  that  of 
conformity  with  the  nature  of  man  as  a  rational  and  social 
being.  This  principle,  which  is  the  justification  of  every  form  of 
positive  law,  is  fully  recognized  in  English  law  under  the  name 
of  reason. 

The  process  of  constructing  a  system  of  jurisprudence  which 
ought  to  be  in  force  everywhere,  but  was  not  necessarily  so  any- 
where, was  most  fruitful  when  applied  to  a  subject  like  inter- 
national law,  which  had  no  existing  positive  law.  Finding  that 
large  parts  of  the  field  of  international  relations  were  not  covered 


INTRODUCTION"  XXXI 

by  existing  custom,  Grotius  and  his  successors,  seeking  a  basis 
for  a  system  of  international  law,  recurred  to  the  law  of  nature 
as  a  law  grounded  in  reason  and  valid  for  all  mankind. 
C  Meanwhile,  an  entirely  independent  system  of  law  had  developed 
in  England  along  lines  which  had  nothing  in  common  with  Con- 
tinental methods.  In  England,  the  early  development  of  a  strong 
central  authority  impressed  the  law  with  a  distinctive  form  and 
character.  From  an  early  tune  a  powerful  legislature  made 
statutes  binding  on  the  whole  realm,  and  the  judgments  of  the 
King's  judges  were  accepted  not  only  as  a  decision  of  the  case  in 
hand,  but  as  a  declaration  of  the  law.  Hence,  English  law  was 
eminently  national,  positive,  and  practical.  Juristic  speculation 
hardly  existed  in  England  before  Bentham.  Such  approaches  to 
it  as  might  be  discovered  in  the  earlier  literature  belong  rather 
to  political  theory  than  to  jurisprudence  proper,  and  even  in  the 
domain  of  public  law  reliance  was  placed  upon  precedents  rather 
than  upon  abstract  principles.  The  practical  maxim  that  the 
test  of  law  is  to  be  found  in  its  recognition  by  the  courts  coloured 
English  juristic  philosophy,  and  limited  the  conception  of  law  to 
a  definite  set  of  rules  administered  by  tangible  authorities.  The 
English  school  of  jurisprudence,  as  stated  by  Hobbes  and  applied 
by  Bentham  and  Austin,  is  the  direct  descendant  of  the  empiricism 
of  Bacon.) 

The  historical  theory  of  law  formulated  by  Savigny  was  one  of 
the  results  of  the  reaction  against  the  French  Revolution.  In 
opposition  to  the  revolutionary  tendencies  of  the  natural  law 
theory  it  set  up,  not  the  will  of  the  sovereign,  but  the  authority 
of  the  past.  Law  is  not  made  consciously  ;  it  is  a  growth,  a 
creation  of  the  collective  national  mind,  interwoven  with  the 
national  life  and  character,  and  is  no  more  the  creation  of  an 
arbitrary  will  than  language  or  religion.  With  the  historical 
jurists  the  type  of  law  is  custom,  and  historical  continuity  is  an 
essential  condition  of  healthy  growth.  The  historical  theory  also 
represents  a  reaction  against  the  analytical  school,  which  regards 
legislation  as  the  normal  source  of  law. 

Later  jurists,  under  the  leadership  of  Ihering,  have  attempted 
a  synthesis  of  the  foregoing  theories,  at  the  same  time  pointing 
to  the  merits  of  a  comparative  method.  [Law  is  the  product  of 
conscious  and  increasingly  determinate  human  will.  While  it  is 
undoubtedly  an  historical  phenomenon,  it  is  by  no  means  exclu- 
sively a  national  product.  Its  history,  like  that  of  civilization  hi 


XXX11  INTRODUCTION 

general,  is  a  history  of  borrowings  and  assimilation.  The  justifi- 
cation of  law  as  a  human  institution  is  expediency.  Law  is  made 
for  society,  and  must  meet  its  actual  needs.) 

The  prevalence  at  a  given  time  of  one  or  another  school  of 
jurisprudence  is  the  outcome  of  historical  conditions.  But  con- 
ditions change,  and  theories  once  regarded  as  final  are  found 
to  be  illusory  or  inadequate.  Each  of  the  theories  of  law — 
the  philosophical,  the  analytical,  the  historical,  the  comparative 
— embodies  a  partial  truth,  and,  as  methods,  each  is  in  its  place 
legitimate  and  necessary.  All  methods  were  used  to  some  extent 
by  the  Romans  without  the  formulation  of  any  theory.  Long 
ago  Bacon  pointed  out  the  danger  from  merely  scholastic  con- 
ceptions of  law.  On  the  other  hand,  a  merely  practical  atten- 
tion degrades  the  science  into  a  dry  and  unfruitful  routine.  The 
studv  of  the  philosophical  and  ethical  foundations  of  law  is  of 
vital  importance,  but  the  ideal  should  be  pursued,  not  as  an 
abstraction  leading  to  empty  generalities,  but  for  the  purpose  of 
realizing  it  in  practice.  The  illuminating  effect  of  the  historical 
method  is  well  shown  in  some  of  the  judicial  opinions  of  the  late 
Lord  Bowen,  but  in  other  hands  it  too  often  leads  to  mere  anti- 
quarianism.  The  analytical  method  is  essential  to  all  clear 
juristic  thinking,  yet,  pursued  to  the  exclusion  of  other  points  of 
view,  it  begets  abstract  and  mechanical  formalism.  The  main- 
tenance of  general  principles  is  essential  to  the  uniformity,  cer- 
tainty, and  impartiality  of  the  administration  of  justice,  but 
logical  deduction  from  established  rules  is  not  always  adequate 
to  meet  changed  conditions.  The  rigidity  and  formalism  which 
constitute  the  greatest  defects  of  a  system  of  case  law  can  only 
be  overcome  by  constant  reconsideration  of  principles  with  refer- 
ence to  the  ends  subserved.  Legal  conceptions  should  be  re- 
garded as  working  hypotheses  rather  than  as  final  truths. 

VAN  VECHTEN  VEEDER. 


THE 

• 

GREAT    JURISTS    OF    THE    WORLD 

GAIUS 

IF  the  traveller  in  Northern  Italy  should  feel  a  wish  to  escape 
for  a  moment  from  the  atmosphere  of  ever-expectant  attention 
that  besets  the  eager  sightseer  on  every  side,  he  may,  if  he  choose, 
have  his  way  when  he  comes  to  Verona.  Quitting  the  Cathedral 
by  the  west  entrance,  he  may  cross  the  little  Piazza  del  Duomo 
to  the  Palazzo  dei  Canonici,  the  home  of  the  Chapter  library — a 
modest  enough  home,  for  all  its  grand  name — and  there,  if  he 
likes,  he  may  leave  the  glare  and  noise  of  the  streets,  and  the  push- 
fulness  of  touts,  behind  him,  and  pass  for  a  while  into  the  dim, 
peaceful  sanctum  of  scholarship.  He  will  be  received  with  kindly 
dignity  by  the  courteous  librarian — he  will  probably  be  the  only 
visitor — and,  on  stating  his  wish  to  see  the  palimpsest  of  Gaius, 
he  will  be  shown,  without  further  ado — it  lies  ready  to  hand — 
a  strange-looking,  time-stained,  much-mauled  bit  of  parch- 
ment. This  curious  document,  with  its  words  (a  great  many 
of  them  contractions)  all  joined  together  and  innocent  of  punc- 
tuation, will  probably  convey  little  meaning  to  him,  unless 
he  happens  to  be  an  expert  palaeographer.  Nevertheless,  it  has 
a  strange,  eventful  history  to  tell,  and  our  traveller  might  do  worse 
than  listen  for  a  few  moments  to  its  story  in  the  peace  of  the  old 
library,  while  without,  on  the  one  side,  the  sounds  of  the  modern 
town's  life  pass  muffled  by,  and  on  the  other,  not  many  yards 
away,  the  Adige — Virgil's  "Athesis  amcenus  "• — rushes  joyously 
on  its  impetuous  course,  just  as  it  did  some  1,750  years  ago,  when 
Gaius  wrote  law-books  and  taught  law  (we  know  not  where), 
and  when,  some  300  years  later,  an  industrious  scribe  made 

1  2 


2  QAIUS 

(we  know  not  where)  this  copy  of  Gaius's  most  widely  known 
work. 

Who,  then,  was  Gaius  ?    We  know  next  to  nothing  about  him 
personally.    Where  data  are  few,  guesses  are  many.    The  very 
dearth  of  our  information  has  produced  an  overwhelming  volume 
of  literature,  a  perfect  riot  of  conjecture.    We  do  not  even  know 
his  name,  or  his  birthplace,  or  where  he  lived.    Was  Gaius  his 
nomen,  or  his  cognomen,  or  merely  his  prsenomen  ?     The  last  is 
the  most  generally  accepted  view,  but  authorities  have  been  found 
to  champion  each  of  the  other  alternatives.    And  if  "Gaius  " 
was  a  prsenomen,  what  was  his  complete  name,  and  how  came 
he  to  be  universally  called  by  his  prsenornen  only  ?    Here,  again, 
the  guesses  are  numerous,  and  some  of  them  utterly  fantastic. 
Among  the  names  proposed  are  Gaius  Pomponius,  Titus  Gaius, 
Gaius  Bassus,  Gaius  Noster  (as  though  "noster  "  were  a  proper 
name),  Gaius  Laelius  Felix.     Another  conjecture  is  that  his  full 
name  was  C.  Cassius  Longinus,  and  that  he  was  identical  with 
the  famous  lawyer  of  that  name  who  was  Consul  in  A.D.  30,  and 
succeeded  Masurius  Sabinus  in  the  leadership  of  the  Sabinian, 
or  Cassian,  school.    In  support  of  this  theory  it  is  pointed  out 
that  Gaius  was  admittedly  a  prominent  adherent  of  the  school 
mentioned,  and,  further,  that  of  the  only  four  passages  in  the 
Digest  in  which  an  author  is  cited  simply  by  the  name  of  "  Gaius," 
three — one  (Dag.  24,  3,  59)  from  Julian,  and  two  (Dig.  35,  1,  54, 
and  46,  3,  78)  from  Julian's  "prseceptor,"  Javolenus — refer  almost 
certainly  to  C.  Cassius  Longinus,  while  the  fourth  (from  Pompo- 
nius, Dig.  45,  3,  39)  probably  does  so  too.1     From  this  it  is  argued 
that  Gaius  must  have  been  the  short  name  by  which  C.  Cassius 
Longinus  was  generally  known  in  the  profession.    This  theory, 
however,  cannot  be  reconciled  with  the  evidence  furnished  by 
Gaius's  works  as  to  the  dates  at  which  he  lived.    From  that 
evidence  it  is  abundantly  clear  that  the  author  of  the  Institutes 
must  have  lived  much  later  than  A.D.  30.    In  order  to  get  over 
this  difficulty,  it  has  been  suggested  that  our  Gaius,  if  not  iden- 
tical with  the  leader  of  the  Cassiani,  was,  at  any  rate,  a  descendant 
and  namesake  of  his.     But  this  theory  is  little  more  than  a  random 
guess,  and  is  merely  an  attempt  to  explain  why  Gaius  was  called 
by  his  praenomen  only — the  idea,  apparently,  being  that  he  was 

1  There  is  still  some  doubt  (assuming  C.  Cassius  Longinus  and  our  Gaius 
to  be  different  persons)  to  which  of  the  two  writers  i'omponius's  "  Gaius 
noster,"  in  Dig.  45,  3,  39,  refers  (sec  Roby,  Introduction  to  the  Study  of  Jus- 
tinian^ Digest,  p.  clxxv ;  Muirhead,  Roman  Law,  second  edit  ion,  p.  301,  note  6). 


GAitrs  3 

so  called  for  short,  in  order  to  distinguish  him  from  his  supposed 
ancestor.  Huschke  has  conjectured  that  Gaius  may  have  been 
one  of  two  jurists  bearing  the  same  nomen  and  cognomen,  and 
differing  only  in  their  prsenomen,  and  that,  in  order  to  differen- 
tiate them,  it  became  customary  to  call  our  Gaius  by  his  prse- 
nomen. He  offers,  however,  no  surmise  as  to  who  Gaius's  mys- 
terious namesake  may  have  been.  Dernburg  has  put  forward  a 
theory  that  Gaius  was  simply  an  affectionate  nickname  given 
by  students  to  a  popular  lecturer,  and  that  the  name  stuck  to  him 
ever  after,  both  among  members  of  the  legal  profession  and  in 
the  book  trade.  Other  writers,  abandoning  the  search  for  the 
full  name,  have  turned  the  single  name  to  account  in  support  of 
some  theory  concerning  his  personal  history.  Plain  Gaius,  it  is 
said,  must  have  been  a  man  of  humble  position — a  freedman, 
perhaps  ;  certainly  he  could  not  have  held  any  important  office. 
Mommsen  uses  the  single  name  as  an  argument  for  his  view 
(below,  p.  5)  that  Gaius  was  a  Greek  provincial,  the  practice 
of  calling  a. man  by  his  prgenomen  being  peculiar  to  Greek  districts. 
The  mystery  is  still  further  deepened  by  the  curious  fact — one  of 
the  many  curious  facts  in  the  story  of  Gaius — that  (apart  from 
the  doubtful  passage  from  Pomponius  in  Dig.  45,  3,  39,  above  re- 
ferred to)  not  a  single  mention  of  his  name  occurs  hi  any  legal 
writer  or  historian,  whether  contemporary  or  other,  during  a 
period  of  some  250  years  from  his  death — not  even  in  Ulpian's 
Liber  singularis  regularum,  where  the  resemblances  with  Gaius's 
works  are  numerous,  and  where  one  would  naturally  have  ex- 
pected some  allusions  to  the  earlier  writer.  And  yet,  during  those 
250  years,  Gaius's  literary  reputationwas  steadily  on  the  increase, 
and  his  name  was  becoming  a  household  word  wherever  law  was 
taught.  Diomedes  the  grammarian,  indeed,  who  lived  towards 
the  close  of  the  fourth  century,  mentions  him  once  ;  but,  as  far  as 
the  law  is  concerned,  the  earliest  references  to  him  occur  in 
Valentinian  III.'s  Law  of  Citations,  of  A.D.  426  (see  below,  p.  8), 
and  in  the  Mosaicarum  et  Romanarum  Legum  Gollatio.1  Nowhere, 
however,  is  he  spoken  of  otherwise  than  as  "  Gaius,"  and  the  riddle 
of  his  full  name  (if  he  had  one)  remains  unsolved.2 

1  The  date  of  the  Collalio  is  uncertain.     Huschke  assigns  it  to  the  end  of 
the  fourth  century  ;  others  think  that  it  was  later  than  the  Law  of  Citations. 
Tit.  xvi.  2  of  the  Gollatio   contains    an   extract    from    Gaius's    Institutes 
(book  iii.,  1-17). 

2  On  the  whole  question,  see  Professor  Goudy's  Appendix  to  the  second 
edition  of  Muirhead's  Roman  Law,  pp.  431-3. 


4  OAitrs 

When  we  come  to  the  question  of  Gaius's  dates,  we  are  on  much 
firmer  ground.  The  evidence  on  this  point  is  almost  entirely 
derived  from  his  extant  writings- — his  Institutes,  and  the  ex- 
cerpts from  his  other  works  in  the  Digest — but,  such  as  it  is,  it 
is  sufficient  to  produce  substantial  agreement  among  the  authori- 
ties. We  are  able,  for  example,  to  infer  from  a  passage  in  his 
book  on  Trusts,  which  is  preserved  to  us  in  Dig.  34,  5,  7,  pr. — 
"nostra  quidem  aetate  Serapias,  Alexandrina  mulier,  ad  divum 
Hadrianum  perducta  est  cum  quinque  liberis  quos  uno  fetu  enixa 
est  " — that  he  lived  in  the  reign  of  Hadrian,  and  that  at  the  time 
when  this  passage  was  written  Hadrian  was  probably  no  longer 
alive,  it  being  the  general,  though  not  the  invariable,  practice 
of  Gaius  to  prefix  the  word  divus  to  the  names  of  deceased 
Emperors  only,  and  to  describe  a  living  ruler  (if  he  gave  him  any 
adjective  at  all)  by  some  such  term  as  optimus  or  sacratissimus. 
We  derive  much  assistance,  again,  from  the  various  references  in 
Gaius  to  contemporary  senatusconsulta  and  Imperial  laws,  the 
dates  of  which  we  are  able  to  determine  from  other  sources. 
And  whenever  Gaius,  in  dealing  in  extenso  with  a  particular  sub- 
ject, fails  to  mention  a  recent  alteration  in  the  law — e.g.  in  his 
discussion  of  the  law  of  cretio  in  Institutes  ii.  177,  he  makes  no 
mention  of  the  change  by  Marcus  Aurelius  referred  to  in  Ulpian's 
Fragmenta  (xxii.  34) — we  have  some  reason  for  assuming  that 
the  alteration  was  made  too  late  for  him  to  take  it  into  account. 
Of  course,  such  facts  as  the  absence  of  any  reference  in  the 
Institutes  to  well-known  enactments  like  the  Senatusconsultum 
Tertullianum,  Vellseanum,  or  Macedonianum,  can  be  explained 
on  other  grounds,  and,  in  any  event,  allowance  has  always  to  be 
made  for  the  many  lacunae  which  still,  unfortunately,  mar  the 
text  of  the  Institutes.  But,  on  the  whole,  the  evidence  for  fixing 
Gaius's  dates  is  fairly  satisfactory,  and,  accordingly,  it  is  generally 
held  that  he  lived  in  the  reigns  of  Hadrian  (A.D.  117-138),  Anto- 
ninus Pius  (A.D.  138-161),  and  Marcus  Aurelius  (A.D.  161-180)2  ; 

1  One  of  these  lacunae  occurs  in  the  very  part  of  the  manuscript  where  a 
discussion  of  the  SO""  Tertullianum  might  have  been  expected.     The  absence 
of  any  notice  of  these  senatusconsulta  and  of  other  matters  of  importance 
to  students,  such  as  comrnodatum,  deposituin,  pignus,  dos,  is  pointed  to  by 
Dernburg  as  evidence  in  favour  of  his  theory  that  the  Institutes  were  not 
published  as  a  complete  book,  but  were  merely  a  collection  of  notes  for  lectures 
(Die  Institutionen  des  Gaius  ein  Kollegienheft  aus  dem  Jahre  161  nach  Christi 
Geburt). 

2  It   is   doubtful   whether   he   survived    into   the   reign   of   Commodus. 
A.D.  180  is  the  last  date  traceable  in  his  life. 


GAIU6  5 

that  is,  in  the  Golden  Age  of  the  Roman  Empire,  the  age  when 
its  material  prosperity  and  the  efficiency  of  its  administration 
were  at  their  highest,  and  when  the  rapid  growth  and  spread  of 
Greek  influences — which,  as  Huschke  says,  borrowing  a  simile 
from  Cicero,  from  a  tennis  rivulus  had  become  an  abundantissi- 
mus  amnis — had  produced  a  remarkable  rise  in  the  level  of  general 
culture,  and  a  keen  interest  in  art,  poetry,  and  philosophy. 
Within  the  domain  of  law,  the  age  in  question  covers  a  period  of 
the  most  brilliant  and  fruitful  literary  activity  that  the  world  has 
ever  seen.  Midway  in  this  period  stands  Gaius.  The  great 
names  of  Celsus,  Africanus,  Pomponius,  and,  above  all,  Salvius 
Julianus  (the  last  jurist  cited  by  Gaius),  already  belong  to  the 
past.  The  bearers  of  still  more  illustrious  names — Papinian, 
Ulpian,  Paul — had  yet  to  come. 

The  next  question — the  question  where  Gaius  lived,  and  what 
his  precise  vocation  was — raises  difficulties  of  a  formidable  kind. 
There  are  two  main  theories  in  the  field,  associated  with  the 
honoured  names  of  Theodor  Mommsen  and  Ecluard  Huschke 
respectively,1  and  each  of  these  theories  has  its  variations  in 
matters  of  detail.  According  to  Mommsen,  Gaius  was  by  birth 
a  Greek,  and  by  profession  a  jurist,  who  wrote  and  lectured  on 
law  at  Troas,  an  important  town  in  the  Province  of  Asia  (though 
nothing  is  known  of  any  law-school  there),  and  one  of  the  three 
places  "iuris  Italici  "  mentioned  by  Gaius  himself  in  Dig.  50, 
15,  7.  The  fact  that  he  was  called  by  his  prsenomen  only  is 
pointed  to  as  evidence  of  his  Greek  origin  (above,  p.  3).  He 
was,  obviously,  also  familiar  with  the  Greek  language  and  with 
Greek  literature  and  history,  for  he  quotes  Homer  and  Xenophon 
and  the  laws  of  Solon.  He  always  shows  a  keen  interest  in  the 
laws  of  foreigners — he  wrote  a  commentary  in  thirty  books  on 
the  Edictum  Provinciale,2  the  only  book  of  its  kind  that  is 
known  to  us — and  makes  specific  mention  of  the  laws  of  the 

1  The  arguments  in  favour  of  Mommsen' s  theory,  and  Huschke's  grounds 
of  objection,  are  conveniently  summarized  by  Dr.  Roby  (op.  cit.,  p.  clxxv  ff.). 

2  What  this  Edictum  Provinciale  precisely  was  is  a  highly  controversial 
question,  as  to  which  reference  may  be  made  to  Dr.  Roby  (op.  cit.,  p.  clxxviii  ff.). 
Some  hold  that  it  was  the  traditional  common  part  of  the  several  provincial 
edicts.     Mommsen,  however,  maintains  that  a  general  edict  applicable  to 
all  the  provinces  was  an  impossibility,  and  that  each  provincial  edict  was 
only  valid  in  the  province  for  which  it  was  promulgated,  though  he  agrees 
that  the  substance  of  the  various  edicts  may  have  been,  to  a  large  extent, 
the  same.     The  edict  commented  on  by  Gaius  must,  he  thinks,  have  been 
the  Edictum  Asiaticum.     Huschke,  however,  points  with  much  force  to  the 
great  improbability  of  any  jurist  composing  a  work  in  thirty  books  on  the 
edict  of  a  single  province. 


6  GAIT7S 

Galatians  (Inst.  i.  55)  and  the  Bithynians  (i.  193),  both  of  them 
peoples  living  in  Asia  Minor.  He  was  not,  according  to  this 
theory,  a  practising  lawyer,  but  devoted  himself  entirety  to 
literary  work  and  lecturing.  A  large  number  of  his  works  have 
undoubtedly  a  definitely  educational  aim.  It  is  almost  certain— 
and  here  Mommsen  has  the  great  weight  of  authority  on  his  side- 
that  he  never  had  the  ius  respondendi,  the  right,  that  is,  to 
pronounce  binding  legal  opinions  ex  auctoritate  principis.  This 
explains  why,  among  his  numerous  works,  there  is  no  trace  of  any 
collection  of  responsa  (authoritative  opinions)  or  of  qucestiones 
(practical  cases),  the  liber  de  casibus  (from  which  there  are  seven 
extracts  in  the  Digest)  being  apparently  concerned,  not  with 
actual  cases,  but  with  hypothetical  points  and  examples.  If 
Gaius  had  ever  enjoyed  the  ius  respondendi,  and  the  prestige 
which  such  a  privilege  would  naturally  have  conferred  upon 
him,  the  fact  (already  adverted  to)  that  he  is  not  mentioned  by 
a  single  legal  writer  for  some  250  years  after  his  death  would  be 
simply  unaccountable,  especially  if,  as  some  think,  he  lived  and 
practised  at  Rome.  If,  on  the  other  hand,  the  true  view  is  that 
he  was  a  professor  of  law  in  a  provincial  town  in  Asia  Minor,  not 
possessing  any  recognized  status  among  the  law-making  agencies 
of  his  time,  and  cut  off  from  the  main  current  of  contemporary 
legal  life,  the  fact  in  question — though  still  somewhat  remarkable 
in  view  of  the  immense  popularity  that  subsequently  fell  to 
his  share — becomes,  at  any  rate,  explicable.1  True,  he  took  a 
vigorous  part  in  the  controversial  warfare  of  the  schools,  and 
frequently,  in  the  Institutes,  ranges  himself  on  the  side  of  the 
Sabinians  (nostri  prceceptores),  in  opposition  to  the  Prcculians,  the 
diver  see  scholce  auctores.  But  he  was  the  last  eminent  jurist  in 
whom  this  antagonism  of  the  schools  appears,  and  it  is  quite 
possible  that  the  controversial  spirit  lingered  for  some  time  in 
the  provincial  law-schools  long  after  it  had  become,  in  M.  Girard's 
words,  "une  habitude  demodee  "  in  the  capital. 

As  against  Mommsen's  theory,  Huschke  and  others  point  out, 
with  regard  to  Gaius's  name,  that  there  are  many  instances  of 
undoubted  Romans  being  called  by  their  preenomen  only — e.g., 
Appius  (Claudius),  Servius  (Sulpicius),  and  Sextus  (Pomponius), 


1  The  language  used  by  Gaius  in  a  passage  from  his  commentaries  on 
Edictum   Prpvinciale   (Dig.    xi.,    7,  9) — "miror   quaro    constaro    videal 


the 

.  .     „         ...  ,  videatur, 

neque  heredi  neque  in  herodem  dandam  hano  actionem" — is  certainly,  as 
Paohta  points  out,  suggestive  of  the  attitude  of  a  man  who  considers  himself 
as  standing  outside  a  charmed  circle,  and  ventures,  "  with  deference,"  to 
criticize  a  ruling  of  the  official  authorities. 


GAIUS  7 

and  some  Emperors,  such  as  Titus  and  Marcus — and,  further, 
that  there  were  other  Greek  writers  who  did  not  limit  themselves 
to  a  Roman  praenomen.  And  as  for  Gaius's  references  to  the 
Greek  language  and  Greek  literature,  Huschke,  while  not  con- 
cerned to  deny  that  Gaius  may  have  been  a  Greek  born  in  a  Roman 
colony  in  the  East,  urges  with  some  force  that,  in  view  of  the 
very  general  spread  of  Greek  culture  at  that  time,  it  would  be 
rash  to  draw  any  such  conclusion  from  those  references  alone. 
Unlike  Papinian  and  Modestinus  in  a  later  age,  Gaius  never  wrote 
any  of  his  works  in  Greek.  The  Greek  quotations  (e.g.  the 
passage  from  the  Iliad  vii.  472-5,  quoted  in  Inst.  iii.  141)  were, 
it  is  suggested,  for  the  most  part  the  merest  commonplaces  of 
the  legal  controversies  of  the  time.  As  for  foreign  laws,  they  had 
received  attention  from  other  jurists  besides  Gaius,  and  the 
spread  of  Greek  influences  and  the  increased  intercommunication 
between  the  different  parts  of  the  Empire — Hadrian,  the  "  travel- 
ling Emperor,"  was  nicknamed  "  Graeculus  "  by  his  contempor- 
aries— had  produced  a  very  widespread  interest  in  what  we 
should  call  comparative  law.  Up  to  this  point  the  criticisms  of 
Huschke  are  effective  enough,  but  when  he  comes  to  the  construc- 
tive part  of  his  argument  the  result  is  less  satisfactory.  In  two 
passages  of  the  Digest  Gaius  gives  as  an  example  of  a  "  condition  " 
"si  navis  ex  Asia  venerit  "  ;  in  another,  "si  ex  Africa  venerit." 
In  Dig.  45,  1,  74,  he  mentions,  by  way  of  illustration,  "fundus 
Tusculanus  "  and  "  vinum  Campanum."  In  Dig.  45,  1,  141,  4, 
he  has  "  si  inter  eos  qui  Romse  [not  Troade]  sunt,  talis  fiat  stipu- 
latio  :  hodie  Carthagine  dare  spondes  ?"  It  is  suggested  that 
examples  like  these — and  there  are  others — would  never  occur 
to  a  writer  not  living  in  Rome.  Huschke  is  fain  to  admit  that 
this  is  a  somewhat  frail  argument.  "  These  things,"  he  says, 
"  taken  by  themselves,  prove  little,"  though  he  ventures  to  think 
that,  "taken  together,"  the  points  urged  by  him  "have  great 
weight  in  refuting  "  the  rival  theory.  His  conclusion  is  that  a 
lawyer  so  well  abreast  of  the  legal  knowledge  of  his  time,  and  so 
keenly  interested  in  the  controversies  of  the  schools,  could  not 
possibly  have  lived  "in  aliquo  provinciarum  angulo  abditus," 
but  must  have  exercised  his  profession  at  the  centre  of  the  legal 
world. 

Of  the  two  theories,  Mommsen's  is  perhaps  the  more  plausible 
and  ingenious,  but,  after  hearing  the  advocates  on  each  side,  it 
is  difficult  to  gainsay  the  conclusion  of  Mr.  Roby  (op.  cit., 


8  GAIUS 

p.  clxxvii)  that  neither  party  has  proved  his  case,  and  that  the 
problem  as  to  where  Gams  lived  and  wrought  still  remains 
unsolved. 

Gaius  was  a  prolific  writer.  The  Florentine  Index  (which  will 
be  found  prefixed  to  Mommsen's  edition  of  the  Digest)  enumerates 
thirteen  works,  but  the  list  is  not  exhaustive.  In  the  Digest  he 
is  represented  by  535  excerpts,  as  compared  with  601  frcm 
Papinian,  2,081  from  Paul,  and  2,464  from  Ulpian.  Only  the 
most  important  of  his  works  need  be  specifically  mentioned  here. 
Besides  the  commentary  on  the  Edictum  Provinciale  already 
referred  to  (p.  5),  Gaius  wrote  a  commentary  on  the  Edictum 
Urbicum  (of  which,  according  to  the  Index,  only  ten  books  were 
found) ;  six  books  on  the  Twelve  Tables  (he  was  the  only  post- 
Augustan  jurist  who  was  sufficiently  interested  in  this  ancient 
statute  to  write  a  commentary  on  it) ;  fifteen  books  on  the  Leges 
Julia  et  Papia  (representing  the  modern  ius  civile) ;  a  book  de 
cosibus  (above,  p.  6) ;  and  several  monographs.  The  most 
famous  of  his  works  was  probably  the  Rerum  cottidianarum,  sive 
aureorum,  libri  vii.,  in  which  he  discussed — more  fully  than  in 
the  Institutes,  but  on  similar  lines — a  number  of  "everyday" 
fundamental  legal  truths.  The  sub-title  of  the  work — aurea, 
the  golden  book  (which  was  no  part  of  the  name  given  by  the 
author  himself) — bears  testimony  to  the  admiration  which  sub- 
sequent generations  felt  for  the  book. 

But  of  all  Gaius's  works,  the  one  that  possesses  the  greatest 
interest  for  us  is,  of  course,  the  Institutes,  or,  to  give  it  its  full 
title,  Institutionum  iuris  civilis  commentarii  quatuor,  and  it  is  with 
the  romantic  history  of  this  work  that  the  story  of  Gaius  is,  for  us, 
i  nseparably  bound  up .  Its  success  was  remarkable .  It  gradually 
established  itself  as  the  standard  textbook  for  students  of  Roman 
law,  and  maintained  that  position  for  upwards  of  300  years. 
Other  eminent  jurists  wrote  Institutiones — Callistratus,  Marcianus, 
Florentinus,  even  Paul  and  Ulpian — but  none  of  them  was  able 
to  dethrone  Gaius's  work  from  the  proud  place  it  had  secured 
for  itself.  The  Institutes  and  Res  cottidiance  were  perhaps  the 
first  of  Gaius's  writings  to  achieve  definite  recognition  among 
lawyers  ;  but  as  his  reputation  grew,  his  other  works  came  to 
enjoy  an  equal  authority.  Accordingly,  when  Valentinian  III., 
in  A.D.  426,  enacted  his  Law  of  Citations — thereby,  most  prob- 
ably, giving  effect  to  a  recognized  practice  of  the  courts  and  the 
legal  profession — he  included  Gaius  among  the  five  select  jurists 


GAIUS  9 

all  of  whose  writings  were  to  have  binding  authority  (universa 
scripta  firmamiis),  adding,  in  regard  to  Gaius  (so  as  to  remove  any 
doubt  that  might  arise  from  the  fact  of  his  never  having  had  the 
ius  respondendi),  "ita  ut  Gaium  quae  Paulum,  Ulpianum,  et 
cunctos  comitetur  auctoritas,  lectionesque  [  =  passages]  ex  omni 
ems  opere  recitentur."  Thus  it  came  to  pass  that  Gaius,  the 
unpatented  jurist,  the  humble  professor  of  law  and  writer  of  books, 
the  theoretical  lawyer — a  mere  provincial,  maybe — whose  works 
no  contemporary  or  subsequent  legal  writer  or  historian  deemed 
worthy  of  citation,  was  ranged  side  by  side  with  the  illustrious 
names  of  Papinian,  Ulpian,  and  Paul,  and  firmly  established 
among  the  coryphsei  of  the  law.  And  when,  about  a  century  later, 
Justinian,  a  few  years  after  his  accession  in  A.D.  £27,  took  his  great 
work  of  codification  in  hand,  and  decided  to  preface  his  Code 
with  an  introductory  treatise  of  an  elementary  character,  it  was 
to  the  Institutes  and  Res  cottidiance  of  Gaius  that  he  looked  for 
a  model  of  what  such  a  treatise  ought  to  be.  Justinian's  Insti- 
tutes, composed,  as  he  tells  us  (Constitutio  Imperatoriam),  "ex 
omnibus  antiquorum  institutionibus  et  praecipue  ex  commen- 
tariis  Gaii  nostri  tarn  institutionum  quam  rerum  cottidianarum 
aliisque  multis  commentariis,"  follow  very  closely  the  order  and 
arrangement  of  Gaius 's  work,  and  are,  indeed,  to  a  large  extent 
a  transcript  of  it,  the  obsolete  and  historical  portions  being 
omitted,  and  account  being,  of  course,  taken  of  the  changes  that 
had  occurred  in  the  law.  A  glance  at  Gneist's  Syntagma,  in  which 
the  two  Institutes  are  printed  in  parallel  columns,  will  satisfy 
anyone  as  to  the  heavy  debt  which  Justinian's  compilers  owed 
to  the  older  writer.  The  Institutes  of  Justinian — in  other  words, 
the  revised  Institutes  of  Gaius — were  officially  promulgated  on 
November  21,  A.D.  533,  with  statutory  force  for  the  Eastern 
Empire  as  from  December  30  of  that  year.1 

Meanwhile  a  different  fate  had  befallen  Gaius  in  the  West. 
The  Western  Empire,  shattered  by  the  German  tribes,  had  for- 
mally come  to  an  end  in  A.D.  476.  In  the  German  kingdoms 
which  were  founded  on  its  ruins  the  system  of  personal  laws 
prevailed.  The  Roman  section  of  the  population  thus  continued 
to  be  governed  by  Roman  law.  But  Roman  law  had  become 

1  The  Eastern  Empire  did  not  at  that  time  include  Italy  itself.  The  Code 
was  not  introduced  into  Italy  till  after  the  reconquest  of  that  country  by 
Justinian  in  553,  but  it  maintained  itself  there  even  after  the  further  separation 
from  the  Byzantine  Empire  which  took  place  not  long  after  Justinian's 
death. 


10  GAItJS 

obscured  and  corrupted  during  the  turmoil  of  the  preceding  half- 
century,  and  some  authoritative  statement  of  its  provisions  was 
urgently  called  for.  As  in  the  East,  so  in  the  West,  the  spirit  of 
codification  was  in  the  air ;  hence  the  various  Leges  Romance 
Barbarorum  (i.e.,  records  of  Roman  law  for  the  use  of  the  Roman 
population  in  the  German  kingdoms)  that  came  into  being  early 
in  the  sixth  century,  or,  roughly,  about  a  generation  before 
Justinian's  legislation.  Of  these  by  far  the  most  important, 
both  on  its  own  account  and  by  reason  of  its  connexion  with 
Gaius,  is  the  Lex  Romano,  Visigothorum,  or  Breviarium  Alarici, 
compiled  in  A.D.  506  by  order  of  Alaric  II.,  King  of  the  Visigoths, 
for  the  large  Roman  population  of  France  and  Spain.  Like 
Justinian  at  a  later  date,  the  German  King  decided  to  introduce 
his  code  with  a  short  elementary  treatise  ;  and,  like  Justinian 
again,  he  pressed  Gaius's  Institutes  into  his  service.  The  first 
three  books  of  Gaius  were  condensed  into  two ,  and  the  fourth  (on 
actions)  was  omitted  altogether.  The  historical  and  controversial 
parts  were  struck  out.  This  is  the  so-called  "West-Gothic 
Epitome  of  Gaius."  As  edited  by  Alaric's  commissioners,  it  was 
thought  intelligible  enough  without  the  aid  of  an  interpretatio 
such  as  the  other  parts  of  the  Bremarium  were  supposed  to  re- 
quire. As  a  statement  of  Roman  law,  Alaric's  code  will  not 
bear  comparison  with  Justinian's.  The  Roman  law  there  set 
forth  is  a  rude,  fragmentary,  barbarized  Roman  law.  The 
writings  of  the  great  jurists,  out  of  which  the  Digest,  the  most 
valuable  part  of  Justinian's  Code,  was  composed,  were  beyond 
the  comprehension  of  Alaric's  compilers.  Such  as  it  was,  how- 
ever, it  became  the  standard  source  of  Roman  law  for  Western 
Europe,  and  maintained  that  position  all  through  the  first  half 
of  the  Middle  Ages.  In  the  East,  during  the  same  period,  Jus- 
tinian's Code,  enacted  twenty-seven  years  later,  held  undisputed 
sway. 

During  the  twelve  centuries  and  more  that  followed  the  reign 
of  Justinian,  the  history  of  Gaius  and  his  works  is  merely  part  of 
the  history  of  Roman  law  in  general.  The  first  five  centuries  of 
this  period  were  years  of  more  or  less  complete  legal  stagnation. 
In  the  East  an  age  of  ste  dy  decay  set  in.  Justinian's  Code  was 
continuously  pruned  down  and  attenuated  into  a  series  of 
"  epitomes  of  epitomes ."  In  the  most  successful  work  of  this  class 
—the  Hexabiblos  of  Harmenopulus,  of  A.D.  1345 — a  queer  jumble 
of  a  compilation  that  managed,  somehow,  to  survive  the  wreck 


GAIUS  1 1 

of  the  Eastern  Empire,  and  actually  to  obtain  statutory  force  for 
the  kingdom  of  Greece  in  1835 — Gaius  is  jauntily  referred  to  as 
"  the  chief  of  the  wise  men  who  added  other  laws  and  actions  [to 
the  laws  of  the  Twelve  Tables]."  In  the  West  the  period  in  ques- 
tion was  one  of  dire  disorder  and  confusion.  True,  the  study  of 
Roman  law  never  completely  died  out,  and  in  Italy  itself  the 
traditions  of  Roman  law  showed  a  marked  vitality.  Neverthe- 
less, for  a  long  period  Roman  law,  imperfectly  apprehended  as  it 
was,  led  a  precarious  existence,  and  was  increasingly  exposed  to 
the  risks  of  corruption  and  mutilation.1  When  at  last  the  clouds 
lifted  ;  when  Western  Europe,  confronted  with  the  task  of  dis- 
covering afresh  the  very  elements  of  law  and  political  order,  was 
beginning  to  find  herself  again  ;  then  it  was  that  the  immense 
intellectual  force  of  Roman  law — the  Roman  law,  however,  of 
Justinian's  Code,  not  the  barbarized  versions  of  the  Leges 
Romance — asserted  itself  with  such  striking  results  During  the 
eleventh  century  the  great  revival  of  the  study  of  Roman  law 
took  place,  and  the  fruitful  epoch  of  the  Glossators  commenced. 
Roman  law  was  now  launched  on  its  triumphant  career  in  Conti- 
nental Europe,  and  in  this  triumph  Gaius  bore  no  inconsiderable 
part — not,  indeed,  through  the  Institutes  directly  (for  they,  in 
their  original  form,  still  lay  buried  in  an  obscure  library),  but,  in 
the  main,  through  such  parts  of  his  works  as  Justinian's  Code  had 
preserved.  So  far  as  any  distinct  influence  can  be  assigned  to 
Gaius  among  all  the  great  names  that  figure  hi  the  Digest,  such 
influence  is  all  in  favour  of  orderly  classification  and  system.  It 
may,  psrhaps,  be  putting  Gaius 's  claims  a  little  too  high  to  say 
that  he  has  "  supplied  the  ground-plan  for  all  modern  European 
codes  "  (Ilbert,  Legislative  Methods,  p.  15) ;  but  it  is  quite  true 
that,  thanks  to  his  keen  sense  of  order  and  method,  he  has  exer- 
cised a  very  definite  influence  on  the  shape  which  some  of  the  most 
successful  modern  codes  have  assumed,  notably  the  French  Civil 
Code  of  1804,  itself  the  model  for  a  number  of  subsequent  codes. 
And  it  was  just  some  twelve  years  after  the  enactment  of  the 

1  A  striking  illustration  of  the  low  intellectual  capacities  of  the  age  is 
furnished  by  the  Lex  Roraana  Curiensis,  which  at  the  same  time  affords 
us  a  very  quaint  glimpse  of  our  author.  The  Lex  Curiensis  was  a  statement 
of  legal  custom  drawn  up  by  certain  judges  and  ecclesiastics  of  the  Grisons 
for  the  Romance  population  of  the  district.  In  the  course  of  their  labours 
the  compilers  were  rash  enough  to  attempt  to  quote  Valentinian's  Law  of 
Citations.  The  result  was  lamentable.  The  law  itself  was  misunderstood, 
and  mutilated  beyond  recognition,  and  among  the  jurists  named  at  the  head 
of  the  quotation  Gaius  figures  as  "  Gagius,"  in  company  with  Scsevola 
disguised  as  "  Scifola  "  (Vinogradoff,  Roman  Law  in  Mediaeval  Europe,  p.  13). 


12  GAIUS 

Napoleonic  Code  that  the  strangest  of  the  many  strange  inci- 
dents in  the  story  of  Gaius  occurred,  and  the  original  text  of  the 
Institutes  came  to  light  again. 

Thus  we  come  back  to  Verona,  and  the  Palazzo  dei  Canonici, 
and  the  queer,  tarnished  document  before  us.  Somewhere  in 
the  early  Middle  Ages  a  pious  scribe,  being  minded  to  record  the 
epistulce  of  St.  Jerome,  and  being  unable  or  unwilling  to  pur- 
chase the  necessary  clean  parchment  for  the  purpose,  succeeded 
in  getting  hold  of  a  piece  of  parchment  containing  some  writing 
which  to  him,  if  he  could  read  it  at  all,  seemed  doubtless  of  trifling 
value  compared  with  the  epistles  of  his  saint.  Having  procured 
his  parchment,  he  set  to  work  to  prepare  it  for  receiving  the  new 
writing.  The  first  thing  to  do  was  to  expunge  the  old  writing, 
which  happened  to  be  the  text  of  Gaius 's  Institutes.  Our  scribe 
seems  to  have  tried  washing  and  bleaching,  and,  where  the  old 
characters  were  too  stubborn,  pumice-stone,  or  a  file,  or  a  knife, 
was  resorted  to.  Having  cleared  the  ground  satisfactorily  to 
himself,  he  proceeded  to  superpose  the  new  writing  directly  on 
the  old,  and  so  precious  was  the  parchment  that  60  out  of  a 
total  of  251  pages  had  to  be  written  over  twice  (codex  bis  rescriptus). 
By  some  accident  one  leaf — pp.  235  and  236,  containing  §§  134- 
144  of  the  Institutes — became  detached  from  the  rest,  and  thus 
escaped  the  attentions  of  our  scribe.  This  leaf  was  discovered  at 
Verona  by  Scipio  Maffei,  the  Italian  author  and  scholar,  who 
published  its  contents  in  his  Istoria  teologica  in  1740.  Maffei 
recognized  the  likeness  of  the  fragment  (which  is  mainly  concerned 
with  interdicts)  to  Justinian's  Institutes  iv.  15,  but  he  thought 
it  was  merely  a  compendium  of  the  latter  work  by  some  later 
jurist.  He  did  not  suspect  its  connexion  with  our  palimpsest, 
though  he  had  noticed  that  the  manuscript  of  St.  Jerome's  letters 
was  a  codex  rescriptus.  The  first  to  identify  Gaius  as  the  author 
of  the  writing  on  the  stray  leaf  was  Haubold,  in  his  Notitia 
Fragmenti  Veronensis  de  Inter  dictis,  published  in  1816.  It  so 
happened  that  in  the  very  same  year,  but  before  the  publication 
of  Haubold's  Notitia,  Niebuhr,  while  on  his  way  to  Rome  as 
Prussian  Minister  to  the  Apostolic  See,  spent  a  couple  of  days 
at  the  library  in  Verona,  during  which  he  examined  some  manu- 
scripts, including  our  palimpsest.  He  evidently  suspected  that 
something  of  interest  might  be  found  under  the  letters  of  the  saint . 
An  infusion  of  nut-galls  which  he  was  allowed  to  apply  to  the 
ninety-seventh  leaf  of  the  obliterated  writing  enabled  him  to 


«AIUS  13 

decipher  the  contents  of  that  leaf,  which  he  took  to  be  part  of  a 
work  of  Ulpian's.  He  communicated  the  result  of  his  examina- 
tion to  Savigny,  who  at  once  recognized  the  manuscript  as  a  work 
of  Gaius.  The  whole  story  was  told  by  Savigny  in  the  Zeitschrift 
fiir  geschichtliche,  Rechtswissenschaft,  vol.  iii.,  p.  129  ff.,  where 
that  learned  writer  put  forward  the  conjecture,  fully  verified 
later  on,  that  the  text  was  that  of  Gaius 's  Institutes,  and  that  the 
detached  leaf  had  formerly  been  part  of  the  manuscript.  The 
subsequent  story  of  the  manuscript,  which  probably  dates  from 
the  fifth  century,  will  be  found  in  Professor  Muirhead's  Roman 
Law  (pp.  308-10),  and  in  the  Introduction  to  Mr.  Poste's  edition 
of  the  Institutes  (fourth  edition,  pp.  Iii,  liii),  and  it  is  not  neces- 
sary to  repeat  it  here.  It  may  not,  however,  be  out  of  place  to 
pay  a  tribute  of  admiration,  on  the  one  hand,  to  the  patience  and 
single-minded  devotion  with  which  a  number  of  learned  men 
applied  themselves  to  the  infinitely  laborious  task  of  deciphering 
this  obscure  and  mutilated  text  j1  and,  on  the  other  hand,  to  the 
public-spirited  action  of  the  Royal  Prussian  Academy  of  Sciences 
in  first  despatching  its  commissioners  to  prepare  a  transcript  of 
the  manuscript,  and  in  publishing  the  first  edition  of  the  Insti- 
tutes in  1820,  and  subsequently,  after  the  appearance  of  many 
intervening  editions,2  in  enabling  Studemund  to  produce  in  1874 
his  magnificent  facsimile  of  the  text  (Apographum).  If  we  can 
now  pride  ourselves  on  possessing  a  fairly  complete  text  of  the 
Institutes — a  completer  text,  in  fact,  than  that  of  any  other  work 
by  an  ancient  legal  writer3 — it  is  to  the  efforts  of  these  able 
scholars  and  to  the  enterprise  of  the  Prussian  Academy  that  we 
owe  so  splendid  a  result.4 

The  Institutes,  as  is  well  known,  are  an  elementary  textbook 
of  Roman  private  law,  dealing  partly  with  legal  doctrine  and 
partly  (and,  fortunately  for  us,  fairly  liberally)  with  legal  history. 

1  May  an  amnesty  be  accorded  even  to  the  over-zealous  Blume,  whose 
disastrous  chemicals  destroyed  more  than  they  saved  ? 

2  See  Muirhead  (op.  cit.,  p.  310,  note  6). 

3  About  one-thirteenth  still  remains  undeciphered,  half  of  which  belongs  to 
book  iv.     In  the  original  manuscript  three  leaves  are  missing  in  the  middle. 
The  first  of  these  can  be  to  some  extent  supplied  from  the  West-Gothic 
Epitome.     A  kind  fate  has  preserved  the  contents  of  the  second  in  the 
Cottatio  (above,  p.  3).     The    loss   of    the   third  is   most  regrettable,  as  it 
probably  contained  some  much-needed  additional  information   about   legis 
actiones. 

4  A  palimpsest  discovered  by  M.  Chatelain  at  Autun  in  1898  (the  so-called 
"  Autun    MS.    of    Gaiug ")   was  at   first  thought   to   be  another  copy  of 
Gaius's  Institutes,  but  proved,  on  closer  examination,  to  be  merely  a  para- 
phrase of  that  work  (Girard,  Manuel  elementaire  de  Droit  Romain,  third 
edition,  p.  66,  note  1). 


14  OAltIS 

The  term  Institutio  was  apparently  borrowed  from  the  writers 
on  rhetoric,  who  used  it  to  describe  a  book  designed  for  the 
instruction  of  students  (cf.  Quintilian's  Institutio  Oratorio). 
Gaius's  work  was,  so  far  as  we  know,  the  first  to  appear  under 
this  name,  and,  indeed  the  first  of  its  kind  generally,  in  the 
history  of  Roman  legal  literature.  It  exhibits  very  clearly  our 
author's  two  most  salient  characteristics — lucidity  of  expression 
and  orderliness  of  arrangement.  The  style  throughout  is  neat, 
vigorous,  precise.  The  points  are  stated  tersely  and  accurately. 
There  is  no  rhetoric,  no  redundancy.  And  the  whole  scheme  of 
the  work  is  carefully  thought  out  and  skilfully  executed.  With 
Gaius  the  love  of  systematic  arrangement  and  definite  classifica- 
tion was  almost  a  passion.  It  seems  to  pervade  the  whole  range 
of  his  work.  He  sought,  as  Cicero  said  of  his  friend  S.  Sulpicius 
Rufus,  to  treat  law  "  with  the  hand  and  mind  of  an  artist."  It 
was  his  constant  endeavour  to  reduce  the  whole  domain  of  law 
and  its  several  provinces  to  an  orderly  system.  It  was  character- 
istic of  him  that,  when  he  wanted  to  write  on  case  law,  he  did  not 
follow  the  prevailing  habit  of  compiling  an  undigested  collection 
of  qucestiones  (p.  6)  of  the  type  of  the  various  books  Ad  Sabinum 
— deliramenta  Masuriana,  as  Fronto,  the  orator,  contemptu- 
ously called  them — but  elected  to  proceed  by  way  of  critical  notes 
on  Q.  Mucius  Scaevola,  the  famous  contemporary  of  Cicero,  whose 
glory  it  was  to  be  the  first  methodizer  of  Roman  law,  the  man  who 
"  ius  civile  primus  constituit  generatim."  It  may  well  be  that 
the  main  lines  on  which  the  Institutes  were  planned  were  not 
altogether  of  Gaius's  invention,  but  rested  largely  on  the  tradi- 
tions of  the  schools.  That  could  hardly  be  otherwise.  A  treatise 
that  holds  its  own  as  a  standard  legal  textbook  for  several  cen- 
turies does  not  spring  complete  from  the  brain  of  any  one  man  : 
it  necessarily  presupposes  a  great  deal  of  detailed  preliminary 
work.  But  whatever  the  extent  of  Gaius's  indebtedness  to  his 
predecessors  may  have  been,  to  him  belongs  the  credit  of  having, 
by  a  wise  and  discriminating  use  of  his  materials,  and  by  a  keen 
sense  of  proportion  in  the  ordering  of  them,  presented  the  world 
with  a  textbook  of  law  to  which,  in  the  words  of  Mr.  Bryce 
(Studies  in  History  and  Jurisprudence,  vol.  ii.,  p.  512),  "we  have 
nothing  comparable." 

The  persistence  with  which  the  praises  of  Gaius  have  been  sung, 
and  the  undiscriminating  admiration  with  which  his  virtues  have 
been  extolled,  have  produced  in  recent  years  a  certain  amount  of 


GAIUS  15 

depreciatory  reaction.  It  may  be  true,  too,  that  the  curious  and 
dramatic  circumstances  in  which  the  Institutes  came  to  life  again 
(at  the  very  moment  when  the  historical  school  of  law  was  rising 
into  prominence)  have  "led  to  Gaius's  elevation  to  a  higher  pin- 
nacle of  fame  than  his  actual  merits  altogether  warrant  "  (Muir- 
head,  p.  302).  But  there  is  no  reason  why  his  virtues  should  be 
exaggerated  or  his  shortcomings  denied.  Gaius  cannot  be  said 
to  be  a  great  creative  lawyer  of  the  type  of  Julian  or  Papinian, 
though  it  is  only  fair,  in  this  connexion,  to  remember  that  we  do 
not  possess  any  large  work  of  his  in  a  complete  form  that  would 
give  him  an  opportunity  of  displaying  wider  constructive  powers. 
It  may  be  that  he  is  not  a  profound  or  erudite  writer.  Some  of 
his  classifications  may  be  open  to  objections.  His  historical  state- 
ments may  not  always  bear  the  test  of  modern  scientific  criticism, 
as  Kuntze,  his  chief  assailant,  seems  to  think  they  ought  to  do. 
His  etymologies  are  as  na'ive  as  most  of  those  of  his  age.  Even 
his  lucidity  may  be  an  overrated  quality ;  for  has  not  lucidity  been 
described  as  the  negative  virtue  of  mediocre  minds  ?  But  all 
this  means  nothing  more  than  that  he  had  the  defects  of  his 
qualities  and  some  of  the  defects  of  his  time.  Even  after  every 
deduction  has  been  made,  there  remains  a  solid  residuum  of 
sterling  merit  which  entitles  his  Institutes  to  take  rank  as  one 
of  the  most  valuable  and  important  works  in  the  whole  range  of 
legal  literature.  The  discovery  of  the  Veronese  palimpsest  may 
not  have  opened  "  a  new  epoch  in  the  study  of  Roman  law,"  and 
the  "revolutionary  "  effects  of  the  discovery  may  not  have  been 
so  far-reaching  as  some  writers  have  alleged.  Nevertheless,  it 
would  be  churlish  indeed  to  refuse  our  meed  of  gratitude  to  Gaius, 
both  for  what  he  has  done  for  us,  and  for  the  way  he  has  done  it — 
that  is  to  say,  both  for  the  wealth  of  legal  and  historical  material 
he  has  opened  up  to  us,  and  the  flood  of  light  he  has  thrown  on 
so  many  dark  places  in  the  history,  not  only  of  Roman  law,  but 
of  human  institutions  in  general  (and  more  particularly  on  the 
obscure  early  history  of  legal  procedure) ;  and  also  for  the  masterly 
simplicity,  the  deftness  and  finish,  the  "intellectual  urbanity,"1 
with  which  he  has  accomplished  his  task. 

Ihering  tells  us  (Scherz  und  Ernst  in  der  Jurisprudenz,  ninth 
edition,  p.  139  ff.)  how  once,  when  he  was  pondering  the  problem 
of  usucapio  pro  herede  lucrativa,  it  occurred  to  him  that  it  might 
be  useful  if  he  could  cross-examine  Gaius  on  a  few  passages  from 

1  Bryce,  op.  cit.,  p.  198. 


16  GAIUS 

his  Institutes  bearing  on  the  subject  (ii.  52-58;  iii.  £01).    He 
accordingly  proceeded,  there  and  then,  to  summon  the  ghost  of 
Gaius  from  Orcus.    In  the  midst  of  the  clouds  of  cigar-smoke 
that  enveloped  the  professor  there  appeared  a  strange  figure  of 
a  man,  tall,  shrivelled,  slightly  bow-legged,  with  freckled  brow, 
and  the  general  air  of  a  schoolmaster.    This  was  Gaius.    It  may 
well  be  that  many  a  student  of  Roman  law,  worried  by  what 
appears  to  him  the  author's  inordinate  delight  in  the  antiquities 
of  law,  in  the  laws  of  Latins  and  foreigners,  in  subtle  distinctions 
between  different  kinds  of  legacies,  in  the  cretionum  scrupulosa 
solemnitas,  has,  in  his  first  struggle  with  the  Institutes,  uncon- 
sciously formed  a  similar  image  of  Gaius  in  his  own  mind,  just 
as  many  a  student  of  English  law,  repelled  in  his  first  wrestlings 
with  the  Lectures  on  Jurisprudence  by  the  merciless  iteration  and 
the  hammer-like  irresponsiveness  of  Austin's  style,  may  have 
gleefully  recognized  the  aptness  of  Carlyle's  thumbnail  sketch  of 
the  "lean,  grey-headed,  painful-looking  man,  with  large,  earnest, 
timid  eyes,  and  a  clanging,  metallic  voice  "  (Froude's  Life  of 
Carlyle,  1795-1835,  vol.  ii.,  p.  194).     But  in  one  case,  as  in  the 
other,  further  study  may  lead  to  a  revision  of  the  first  impression. 
The  reader  of  Austin  will  come  to  recognize  that  there  is  more  in 
the  Jurisprudence  than  a  tiresome  dogmatism  and  a  parched 
style  of  writing.    In  the  same  way,  if  the  student  of  Roman  law 
carries  his  labours  a  little  farther,  he  may  find  that  there  is  a  good 
deal  more  in  the  Institutes  of  Gaius  than  a  mere  dryasdust 
antiquarianisin.    When  he  comes  to  the  Digest,  it  may  happen 
that,  after  a  hard  struggle  with  a  passage  from  Julian  or  Afri- 
canus  ("  Africani  lex,  ergo  difficilis  ")  or  Papiiiian,  he  will  greet 
with  no  small  pleasure  the  sight  of  the  plain  five-lettered  name 
at  the  head  of  the  next  excerpt,  well  knowing  that,  whatever  the 
point  to  be  dealt  with,  he  will  be  sure  to  find  a  model  of  terse  and 
lucid  exposition.    He  may  then,  perhaps,  form  a  different  picture 
of  our  author — the  picture  of  a  kindly,  alert,  keen-faced  man, 
neat  and  tidy  in  his  person  (was  it  not  he  who  condemned  the 
practice  of  plunging  into  one's  subject  without  orderly  introduc- 
tion, "illotis,  ut  ita  dixerim,  manibus  "  ?  Dig.  1,  2,  1),  quickly 
responsive  hi  his  sympathies,  readily  appreciative  of   others' 
difficulties— the  picture,  in  a  word,  of  a  born  teacher.    May  it  not 
perhaps  be  that  this  is  a  truer  likeness  of  "  Gaius  noster  "  than 
the  whimsical  figure  of  Ihering's  smoke-dimmed  vision  ? 


PAPINIAN 

Connection  with  Septimius  Severus. — The  full  name  of  this 
jurist  appears  in  Justinian's  Code,  and  in  a  quotation  (from 
Paulus)  in  the  same  emperor's  Digest,  as  ^milius  Papinianus. 
In  the  time  to  which  he  belonged  no  trustworthy  inference  as 
to  ancestry  can  be  drawn  from  these  two  words.  There  is 
sufficient  evidence  to  show  that  he  was  a  lifelong  friend  of  the 
Emperor  Septimius  Severus,  with  whom,  according  to  one  story, 
he  was  connected  by  marriage,  through  Severus'  second  wife. 
An  interesting  connection,  if  true  :  for  this  was  that  famous  Julia 
on  whom  Gibbon  passes  such  a  warm,  and  questionable,  encomium 
at  the  beginning  of  his  sixth  chapter.  For  the  scandalous  part 
there  seems  to  be  little  authority  but  a  cock-and-bull  story 
retailed  by  the  omnivorous  Dio  ;  of  her  strange  half-Jewish 
beauty  and  imperious  ambition  we  have  some  record,  in  the 
likeness  on  the  empress's  coins  and  the  newly  assumed  title 
"  Domna  " — best  explained,  it  would  seem,  bythe  literal "  Lady." 
Papinian,  therefore,  may  quite  possibly  have  been  a  native  of 
Syria — the  empress  was  from  Emesa — and  come  as  a  provincial 
to  the  study  of  Roman  law.  To  this  effect  his  omission  of  the 
regular  style — divus — for  deceased  emperors  has  been  remarked, 
in  his  earlier  Qucestiones.  It  has  been  suggested  that  he  may 
have  been  at  one  time  a  lecturer  at  Berytus  ;  and  on  his  whole 
career,  Mommsen  dubs  him  "in  thought  and  speech  the  least 
Roman  of  the  Roman  jurists."  Possibly  we  may  credit  his 
Syrian  origin  with  the  greater  kindliness  and  the  wider  humanity 
which  he  certainly  does  seem  to  introduce  into  the  strait-laced 
logic  of  his  predecessors — such,  for  instance,  as  his  "leader," 
the  difficult  Cervidius  Scsevola.  Whether  actually  pupils  of 
Scaevola  or  not,  Severus  and  Papinian  are  stated  to  have  made 
their  debut  as  consulting  counsel  and  teachers  of  law  (professio) 
under  the  auspices  of  this  jurist,  who  is  a  connecting-link  between 
those  of  the  Antonine  period  and  the  last  great  group — Papinian, 
Ulpian,  and  Paulus. 

17  3 


18  PAPESTIAN 

The  above  statement  (of  Spartianus)  is  the  earliest  historical 
notice  of  Papinian,  whom  we  may  infer,  if  contemporary  with 
his  friend  the  future  emperor,  to  have  been  born  about 
A.D.  146.  For  a  late  fabrication  about  his  parentage  see  below 
(p.  21).  He  succeeded  Severus,  as  we  learn  from  the  same 
authority,  in  the  office  of  counsel  to  the  Fiscus — sometimes,  I 
think  rather  inaccurately,  translated  Privy  Purse.  It  is  not, 
however,  my  business  here  to  investigate  the  constitutional 
position  of  the  Fiscus  and  its  gradual  approximation  to,  or 
absorption  of,  the  State  Treasury.  The  specific  office  of  advo- 
catiis  fisci,  which  probably  originated  under  Hadrian,  must  have 
had  a  large  and  increasing  sphere  of  operation  in  the  way  of 
claims  to  bona  damnatorum,  vacantia,  and  caduca. 

We  next  find  Papinian  appearing — probably,  as  Karlowa 
suggests,  by  appointment  of  his  friend  Severus,  who  became 
emperor  in  A.D.  193 — in  the  position  of  magister  libdlorum  or 
a  libellis.  This  office  had  no  doubt  very  largely  to  do,  as  Momm- 
sen  shows,  with  petitions  for  admission  to  equestrian  or  sena- 
torial rank,  and  the  investigation  of  sufficiency  of  means  in  the 
applicant.  One  is  tempted  to  translate  its  style  "Master  of 
Petitions,"  and  to  think  of  our  own  old  Court  of  Requests.  But 
it  must  be  remembered  that  the  word  libdlus  was  one  of  very 
wide  signification,  covering,  it  would  seem,  almost  any  application 
to  the  emperor  either  from  private  persons  or  magistrates. 

Drafting  of  the  Imperial  Rescripts:  "Preefectus  Prsetorio." — 
Dr.  Roby,  who  uses  the  style  "Master  of  Petitions,"  indicates, 
however,  the  probable  influence  of  this  officer  upon  what  was 
practically  legislation,  in  adding  that  the  Imperial  rescripts  were 
framed  by  him.  The  one  which  is  actually  stated  to  have  been 
delivered  "  under  Papinian's  management  of  the  libetti  "  (Dig. 
20,  5,  12  pr.)  is  really  an  equitable  decision,  or  rather  rule,  in 
contract  law.  And  we  should  probably  not  be  far  out  in  attribut- 
ing to  the  magister  libdlorum  a  considerable  part  of  the  functions 
of  our  early  chancellors  and  keepers  of  the  Privy  Seal,  with  a 
practical  power  of  direct  legislation  which  those  officers  did  not 
possess. 

Finally — perhaps,  to  adopt  another  suggestion  of  Karlowa, 
upon  the  fall  of  Plautianus,  A.D.  203 — Papinian  was  raised  to 
the  position  of  Prazfectus  Prcetorio  (General  of  the  Guard),  which 
he  retained  till  his  death,  or  at  least  till  the  accession  of  Caracalla 
in  211.  Whether  his  predecessor  shared  this  office  with  col- 


PAPENIAN  19 

leagues  or  not,  Papinian  would  seem  to  have  held  it  alone.  Its 
original  military  character,  though  still  subsisting,  had  un- 
doubtedly by  this  time  become  subordinate  or  overshadowed 
by  a  supreme  civil  and  criminal  jurisdiction,  which  its  holder 
had  acquired  as  the  personal  representative  or  delegate  of  the 
emperor. 

With  the  criminal  law  of  the  Roman  Empire  I  am  not  now  so 
much  concerned  as  with  the  civil  law  and  its  various  methods  of 
development.  One  of  these  is  to  be  found  in  the  judicial  de- 
cisions of  the  emperor  or  his  delegate,  and  the  general  rules  often 
coupled  with  them.  A  good  instance  of  this  supreme  jurisdiction 
— or  practically  of  legislation  (for  the  case  seems  to  be  a  hypo- 
thetical one,  of  the  John  Doe  and  Richard  Roe  kind) — occurs  in 
the  interpretation  of  a  draft  bond  brought  before  Papinian  in 
his  Court  as  Praefect  of  the  Prsetorium  (Dig.  12,  1,  40). 

The  "  Qusestiones  "  and  "  Responsa." — But  a  more  remark- 
able feature  in  the  development  of  Roman  civil  law,  and  one  with 
which  Papinian  was  particularly  connected,  consists  of  the 
opinions  given  by  licensed  or  patented  jurists,  whether  in  the 
consulting-chamber,  the  lecture-room,  or  the  textbook.  It  is  of 
this  mode  of  development  that  I  propose  to  speak  more  especially 
in  what  follows. 

The  works  of  Papinian  coming  under  this  head  are  mainly  his 
Qucestiones  and  Responsa.  The  Qucestiones  show  in  the  first  book 
some  sign  of  that  early,  perhaps  provincial,  style  above  referred 
to,  and  may  have  been  written  before  Severus'  accession ;  but 
the  greater  part  of  the  work — -e.g.,  Books  17-37 — obviously 
belongs  to  the  sole  reign  of  that  emperor  (A.D.  193-198).  The 
Responsa  possibly  begin  under  the  joint  reign  of  Severus  and 
Caracalla  (198-211),  but  from  Book  4  onward  they  are  later  than 
A.D.  206,  a  constitution  of  which  year  is  therein  discussed 
(Dig.  24,  1,  32  pr.,  16)  ;  and  the  last  five  books  (15-19)  may  have 
been  written  in  the  period  between  the  death  of  Severus  (Feb- 
ruary 4th,  211)  and  that  of  Papinian  himself  in  the  early  part 
of  the  following  year. 

Murder  of  Papinian  by  Caracalla. — A  certain  amount  of 
somewhat  contradictory  legend  seems  to  have  collected  round 
the  execution,  or  rather  murder,  of  Papinian  by  Caracalla,  but 
the  main  facts  are  fairly  established.  He  accompanied  Severus 
to  Britain,  where  he  evidently  became  aware  of  an  attempt 
made  by  Caracalla  to  murder  the  emperor  his  father,  though  the 


20  PAPINIAN 

language  used  by  the  latter  does  not,  as  I  agree  with  Dr.  Roby, 
amount  to  any  imputation  on  the  loyalty  of  Papinian  himself. 
I  need  not  give  Dio's  story  (1.  76,  c.  14),  in  which  the  aged  Severus 
is  made  to  play  the  part  of  the  Admirable  Crichton  to  his  un- 
worthy son,  who  does  not,  however,  copy  or  anticipate  the  young 
Mantuan  prince.  It  is  perhaps  worth  remarking,  by  the  way, 
that  Zonaras,  in  his  version  of  the  story  of  Dio  (1.  12,  c.  10), 
written  in  the  twelfth  century  A.D.,  gives  the  name  of  the  Praefect 
as  Papianus,  thus  furnishing  a  confirmation,  which  I  do  not 
remember  to  have  seen  noticed  before,  of  the  view  now  generally 
taken,  upon  the  style  of  the  Burgundian  law-book,  Papiani  Liber 
Responsorum  (see  Savigny,  Gesch.,  ii.,  chap.  vii. ;  Brunner, 
Deutsche  Rechtsgesch.,  i.  356-357,  etc.). 

Severus  died  and  was  buried,  as  Yorkshiremen  hold,  at  York, 
in  that  mound  which  I  have  had  pointed  out  to  me,  when  a  boy, 
under  the  odd  title  of  Saint  SevSrus'  (sic)  hill.  Then  broke  out 
at  once  the  hatred  of  the  brothers,  or  perhaps  half-brothers 
(Spartianus,  Severus,  20,  21  ;  Geta,  1) — at  any  rate,  the  hatred 
of  Caracalla  for  Geta — against  which  their  father  had  uttered 
his  last  warning  (Dio,  1.  76,  c.  21),  and  which  had  been  suppressed 
or  ignored  under  the  wise  management  of  the  empress  (see  the 
interesting  coins  in  Cohen's  Monnaies,  iv.  100).  For  the  pictur- 
esque details  of  their  return  to  Borne,  I  must  refer  again  to  the 
sixth  chapter  of  Gibbon,  who  gives  them  in  full  from  Herodianus. 
The  end  of  the  story  is  the  murder  of  Geta  in  his  mother  Julia's 
arms  (Dio,  1.  77,  cc.  1,  2),  shortly  followed  by  that  of  Papinian, 
who  had  been  dismissed  at  the  beginning  of  the  reign,  and  was 
despatched  by  the  blow  of  an  axe.  According  to  one  account, 
after  a  hypocritical  show  of  friendship  towards  him  by  Caracalla 
(Spartianus,  Caracalla,  c.  3),  Papinian's  son,  a  Quaestor,  was  put 
to  death  at  the  same  time,  a  fact  which  may  possibly  have  con- 
tributed some  part  of  Pancirolli's  story,  given  below. 

Whether  the  great  jurist  was  killed  as  an  adherent  of  Geta, 
or  because  he  refused  to  defend  the  fratricide  ;  whether  he  met 
his  fate  as  one  would  expect,  in  silence,  or,  as  Spartianus  says, 
forecasting  a  similar  end  to  his  murderer ;  what  truth  or  point 
there  is  in  Caracalla's  reported  speech  that  the  sword,  not  the 
axe,  had  been  the  proper  instrument  of  execution — all  this  is 
matter  of  little  concern  to  the  present  inquiry  (Spartianus, 
Severus,  c.  21  ;  Caracalla,  cc.  4,  8  ;  Dio,  1.  77,  c.  4).  It  may,  how- 
ever, be  worth  note  to  remark  that  the  famous  constitution  of 


PAPINIAN  21 

Caracalla,  by  which  all  freeborn  persons  in  the  orbis  Romanus 
were  made  Roman  citizens  (wrongly  attributed  in  Nov.  78,  5,  to 
Antoninus  Pius),  appears  from  Dio  (1.  77,  c.  9)  to  belong  to  this 
year,  and  not  to  be  due  to  the  foresight  of  any  jurist  or  politician, 
but  to  the  craft  of  a  tyrant,  wishful  partly  to  palliate  his  evil 
deeds  by  an  ostensibly  popular  measure,  partly  to  increase  his 
revenue  by  the  subjection  of  a  large  number  of  people  to  taxation 
from  which  they  were  previously  free. 

Pancirolli  (De  Claris  Legum  Inter  pretibus,  i.  55)  gives  a  strange 
story  of  a  silver  urn  found  in  the  early  part  of  the  fifteenth  cen- 
tury at  Rome,  purporting  to  contain  the  ashes  of  Papinian,  and 
to  have  been  dedicated  to  his  memory  by  his  father  and  mother, 
Papinianus  Hostilius  and  Eugenia  Gracilis — the  old,  contrary 
to  the  natural  order,  mourning  for  the  young.  Papinian  is 
accordingly  made  to  die  at  the  age  of  thirty-six — an  age  abso- 
lutely irreconcilable  with  the  facts  of  his  life  as  preserved  by 
contemporary,  or  almost  contemporary,  historians.  The  story, 
therefore,  is  not  even  ben  trovata,  and  only  shows  the  special 
interest  felt  at  the  Renaissance  in  this  great  jurist.  A  forged 
urn  may  quite  possibly  exist  in  some  collection,  but  I  have  not 
had  leisure  to  trace  it.  The  names  of  the  parents  are  most 
probably  pure  invention.  For  the  possible  suggestion  of  part 
of  this  story  by  the  death  of  the  younger  Papinian,  see  above. 

Papinian's  Pre-eminence  as  a  Jurist. — The  encomiums  passed 
on  Papinian  by  historians  of  the  time  are  very  high,  and  not 
quite  so  vague  as  in  other  cases.  He  is  the  "  asylum  of  right 
and  treasury  of  legal  learning  "  (Spartianus,  Severus,  c.  21) ;  the 
one  who  "for  knowledge  and  exposition  of  the  laws  surpassed 
all  Roman  legislators  (sic  vo^odera^)  before  him  or  after  him 
(Zosimus,  1,  9).  The  repeated  recognitions  of  his  superiority 
over  his  peers  by  Justinian  are,  no  doubt,  attributable  partly 
to  the  pre-eminence  accorded  Papinian  in  the  Law  of  Citations 
(see  below)  :  this  latter  is,  however,  in  itself  the  strongest  testi- 
mony. Modern  writers  on  jurisprudence  and  legal  history  echo 
his  praises,  from  the  early  times  of  the  Renaissance  to  the  present 
day.  But  I  only  wish  here  to  call  attention  to  one  particular 
characteristic  of  Papinian,  which  is  especially  remarked  by  some 
of  the  latest  authorities  (e.g.  Karlowa,  Recktsgesch.,  i.  736 ; 
Kriiger,  Sources,  French  translation,  265  ;  Sohm,  English  trans- 
lation, 2nd  ed.,  p.  103). 

Papinian's  special  greatness,  it  is  observed,lies  in  his  application 


22  PAPTNIAN 

of  theory.  He  teaches  largely  by  concrete  cases,  but  he  ever 
strives  to  view  the  individual  case  with  reference  to  its  governing 
principle.  His  conclusions  are,  comparatively,  very  little  en- 
cumbered with  particular  circumstances,  but  are  stated,  as  far 
as  possible,  in  an  abstract  and  general  form,  etc.,  etc. 

Now,  this  characteristic,  though  pre-eminent  in  Papinian,  is 
more  or  less  shared  by  all  the  great  jurists  of  the  Digest.  It  has 
to  do  with  a  peculiar,  and,  to  my  mind,  a  very  advantageous, 
mode  of  development  hi  Roman  civil  law — a  mode  of  develop- 
ment which,  as  it  is  distinctly  connected  with  the  authoritative 
licensing  or  patenting  of  certain  jurists,  is  best  considered  by  a 
brief  view  of  that  difficult  and  interesting  subject.  It  is  not 
impossible  that  a  system  to  which  the  Roman  law  owed  much 
of  its  merit  might  have  some  lesson  for  us  even  at  the  present 
day.  And  although  many  points  in  its  earlier  history  are,  and 
will  probably  continue  to  be,  matter  of  dispute,  that  to  which  I 
particularly  wish  to  draw  attention  is  an  ascertained  fact,  for 
at  least  as  early  as  the  time  of  Papinian.1 

The  "  Prudentes "  and  their  Hypothetical  Cases. — The 
prudens  of  Roman  law  does  not  exactly  correspond  with  any  one 
of  our  recognized  professional  men.  He  was  not  a  pleader,  but 
rather  combined  the  character  of  solicitor  with  that  of  equity 
draughtsman  and  conveyancing  counsel,  being  consulted  at  his 
own  house  both  by  clients  directly  and  by.  their  patroni,  or  public 
pleaders.  To  these  functions  many,  probably  among  the  most 
active  and  able  prudentes,  added  that  of  giving  public  instruction 
in  law.  They  offered  their  services  and  leisure,  to  quote  Pom- 
ponius'  expression,  as  much  to  learners  as  to  clients.  Thus, 
although  their  responsa  were  no  doubt  originally  delivered  with 
regard  to  points  actually  in  litigation,  there  naturally  arose  that 
framing  or  putting  of  hypothetical  cases  to  which  Sir  Henry  Maine 
justly  attributed,  as  a  consequence,  a  special  development  of 
general  rules  or  principles  (see  the  latter  part  of  chap.  ii.  hi 
Ancient  Law). 

This  form  of  development  may  also  be  inferred  on  other  grounds, 
partly  philological,  partly  based  on  what  we  know  of  early  prac- 
tice, and  partly  on  the  sadly  scanty  accounts  given  by  Pomponius 

1  On  the  authorities  for  much  of  the  following  matter  I  must  refer  to 
Part  II.  chap.  ix.  of  my  own  work,  Practical  Jurisprudence,  from  which  most 
of  this  matter  is  taken,  with  such  revision  as  has  been  suggested  by  later 
reading.  Reference  is  also  made  from  time  to  time  to  the  sections  of  Pom- 
ponius Enchiridium,  Digest,  1,  2,  2,  which  is  our  main  authority  on  the 
subject. 


PAPINIAN  23 

and  Gaius,  writing  under  Hadrian  or  shortly  after,  of  a  very  im- 
portant accession  of  influence  to  some,  at  least,  among  the  body 
of  prudentes.  During  the  republic  the  prudentes  were  simply 
teachers,  textbook  writers,  or  chamber  counsel,  without  the 
necessity  of  any  "  call "  or  diploma.  The  profession  was  open 
to  all  who  had  confidence  in  their  acquirements ;  they  had  no 
official  position,  and  their  opinions,  in  actual  cases,  were  not 
binding  on  the  judge,  to  whom  they  were  communicated  by  the 
prudens  or  quoted  by  the  litigant.  These  communications  had 
the  practical  weight  of  their  author's  reputation — no  more. 
Such,  at  least,  was  the  state  of  things  in  the  later  republican 
Roman  law.  At  an  earlier  time,  it  is  held  by  some  that  the 
Pontiffs,  or  one  of  their  number  appointed  for  the  year,  had  the 
power  of  delivering  opinions  which  were  binding  on  the  judex. 
But  this  is  extremely  doubtful,  and  it  is  more  in  accordance, 
both  with  a  priori  probability  and  the  general  testimony  of  our 
only  authority,  Pomponius,  to  regard  the  measure  of  which  I 
have  next  to  speak  as  no  revival  of  an  old  principle,  but  the 
introduction  of  a  new  one  by  Augustus. 

The  Emperor  Augustus  and  Licensed  "Prudentes." — It  was 
by  no  means  to  the  interest  of  that  astute  sovereign  to  leave 
entirely  out  of  his  own  hands  the  influence  exercised  by  leading 
prudentes  upon  the  development  of  Roman  civil  law.  Such 
influence  was  undoubtedly  very  great,  operating  through  the 
current  administration  of  justice,  and  its  resultant  rules  of 
practice  crystallized  from  time  to  time  in  the  Praetor's  edict ; 
although,  as  has  been  said,  the  opinion  of  the  prudens  on  an 
actual  case  was  not  binding  on  the  judex.  It  was  most  probably 
with  a  view  of  exercising  some  control  over  this  influence  that 
Augustus,  ostensibly  "  in  order  to  enhance  the  influence  of  the 
unwritten  law,"  directed  "that  prudentes  should  give  responsa 
on  his  (the  emperor's)  authority  or  guarantee  " — which  naturally 
became  a  subject  of  petition,  as  matter  of  privilege  (Pomponius, 
§  49).  Much  question  has  been  raised  as  to  whether  the  intention 
was  henceforth  to  prohibit  unofficial  responsa  (that  is,  in  actual 
cases)  or  merely  to  give  special  weight — most  probably  a  binding 
character  on  the  judex — to  official  ones.  The  latter  is  my  own 
view,  which  seems  to  me  somewhat  confirmed  by  the  subse- 
quently professed  intention  of  the  despot  Caligula  to  prohibit 
anyone  from  giving  a  responsum  but  himself  (see  below.  I 
have  adopted  what  I  believe  to  be  the  better  reading,  in 


24  PAPINIAN 

Suetonius,    Cal.    c.    34,    "ne   qui    respondere    possint    prseter 
eum  "). 

After  the  institution  of  these  licensed  or  patented  jurists,  their 
responsa  were  regularly  delivered  under  their  seal,  not,  of  course, 
to  conceal  the  opinion  from  their  consulter — I  avoid  the  word 
client,  more  properly  expressing  the  relation  to  a  patronus — but 
to  accredit  it  as  coming  from  the  particular  counsel.  On  the 
manner  of  quoting  counsel's  opinion  which  previously  obtained 
there  is  some  difficulty  in  the  interpretation  of  Pomponius  (§  49). 
I  still  venture  to  hold,  as  against  Dr.  Roby  (Introduction  to  Digest, 
102),  that  the  ipsi  spoken  of  are  the  consulters,  not  the  prudentes  ; 
but,  whoever  it  was  that  originally  communicated  the  opinion 
to  the  judex,  it  is  clear  that  he  received  it  from  the  patented 
counsel  under  the  latter 's  official  seal. 

Whether,  again,  the  celebrated  Masurius  Sabinus  was  the  very 
first,  or  the  first  of  equestrian  rank,  to  receive  the  new  distinc- 
tion, and  at  what  exact  time  he  received  it,  are  matters  immaterial 
to  the  present  subject.  I  retain  my  opinion,  in  spite  of  Momm- 
sen's  suggested  emendation  of  Digest,  1,  2,  2,  48,  that  Sabinus 
was  the  actual  first,  and  that  the  difficulties  about  his  appoint- 
ment by  Tiberius  may  be  solved  by  supposing  the  appointment 
to  have  taken  place  about  A.D.  12-14  (see  Practical  Jurisprudence, 
p.  295). 

For  some  time  it  would  not  appear  that  the  privilege  respondendi 
ex  auctoritate  principis  was  granted  very  widely.  The  threat  of 
the  Emperor  Caligula  seems  to  refer  to  a  class,  but  the  class  is 
probably  that  of  consulting  counsel  in  general. 

The  Authority  of  the  "Responsa":  Hadrian's  Rescript. — 
In  the  reign  of  Hadrian,  however,  the  number  of  the  licensed 
prudentes  was  most  probably  increased  and  the  authority  of  their 
responsa  more  clearly  defined.  The  former  point  seems  to  me 
fairly  deducible  from  the  somewhat  obscure  jocosity  of  the 
emperor's  reply,  to  a  request  by  men  who  had  held  the  office  of 
Praetor,  that  they  might  be  allowed  the  right  of  response.  This 
must  clearly  mean  the  licensed  or  patented  position,  whether 
that  excluded  the  old  practice  or  not.  The  reply,  as  reported 
by  Pomponius  (§  49),  was  "  that  the  position  of  adviser  was  not 
generally  asked  for,  but  volunteered,  and  that  the  emperor  was 
only  too  well  pleased  if  anyone  had  sufficient  confidence  in  his 
own  powers  to  train  himself  to  advise  the  public." 

Whatever  may  be  the  precise  meaning  of  this  speech,  a  plurality 


PAPINIAN  25 

of  licensed  counsel  is  clearly  postulated  in  an  actual  rescript  of 
Hadrian  cited  by  Gaius  (i.  7)  as  to  the  juridical  effect  of  opinions 
delivered  by  jurists  to  whom  the  emperor  has  granted  the  jits 
respondendi.  If  they  all  agree,  such  common  opinion  is  to  have, 
the  force  of  statute  ;  if  they  differ,  the  judex  may  follow  which 
he  pleases. 

We  have  not,  unfortunately,  the  ipsissima  verba  of  this  rescript, 
and  it  is  quite  allowable,  on  our  information,  to  maintain  that 
the  powers  which  Hadrian  originally  intended  to  confer,  or  con- 
firm, were  simply  judicative,  or  practically  judicative,  on  actual 
cases  for  which  the  licensed  jurists  had  been  consulted. 

The  Testimony  of  Gaius. — On  the  other  hand  we  have,  in  the 
first  book  of  Gaius,  written  after  the  death  (A.D.  138)  of  Hadrian 
(who  is  called  divus  in  the  passage  referred  to),  and  possibly,  as 
some  think,  published  after  the  death  of  Pius  (A.D.  161),  other 
testimony,  of  rather  a  significant  character,  as  to  the  ultimate 
effect  and  the  probable  form  of  the  responsa  in  question.     Here 
we  are  told  that  they  are  among  the  permanent  rules  of  law  of 
the  Roman  people  ;  they  are  the  sententice  et  opiniones  of  men  who 
had  a  definite  permission  jura  condere  (Gaius,  1.  2,  7).  This  curious 
phrase  is  often  explained  with  reference  simply  to  the  time  of 
Hadrian  (of  whose  rescript  it  probably  formed  no  part)  or  that  of 
Gaius.    As  a  matter  of  fact  it  descended  from  republican  times. 
We  find  it,  for  instance,  in  Plautus'  Epidicus  (3,  4,  89,  90),  written 
shortly  after  195  B.C.     The  second  old  man  of  the  play — a  wise- 
acre after  the  style  of  our  own  Polonius — has  the  name  of  being 
omnium  legum  atque  jurum  fictor  (et)  conditor."     Condere  "  leges  " 
is,  of  course,  predicated  only  in  joke,  of  a  private  individual ; 
condere  jura  was,  as  we  shall  see  from  another  passage  of  Gaius 
(4,  30),  a  recognized  function  of  the  prudens  in  the  system  of  the 
legis  actiones.    It  is  clear,  not  only  from  the  natural  meaning  of 
the  words,  but  from  the  manner  in  which  they  are  used,  by 
Plautus  here  and  elsewhere,  and  by  Gaius,  that  the  phrase  does 
not  mean,  as  Austin  and  many  later  and  better  authorities  take 
it  to  mean,  judicial  decision,  but  some  work  of  non-judicial 
prudentes.    It  would  also  appear  that  jura  must  mean  something 
more  than  an  isolated  opinion  delivered  on,  and  confined  to,  a 
particular  case.     I  adhere,  therefore,  to  my  view,  previously  ex- 
pressed in  my  Practical  Jurisprudence,  that  the  prudens  spoken 
of  as  jurum  conditor  is  so  spoken  of  as  framing  statements  or 
maxims  of  non-statutory  law — law,  that  is,  of  custom  or  practice. 


26  PAPINIAN 

The  stage  of  legal  proceedings  at  which  these  jura  were  employed, 
and  then-  authority  when  so  employed,  varied  for  the  time  of  the 
legis  actiones,  for  that  of  the  formulary  system,  and  for  that  of 
the  later  empire,  but  their  matter  and  form  were  probably 
determined  by  their  earliest  usage. 

The  "  Legis  Actiones  "  :  Statement  of  General  Principles. — 
There  are,  as  is  well  known,  such  deplorable  lacunce  in  our  frag- 
mentary information  as  to  the  legis  actiones,  that  some  stages  of 
the  procedure  must  be  matter  of  inference,  to  be  based,  of 
course,  on  common  sense  and  what  seems  obvious  necessity. 
As  one  of  these  inferences,  I  myself  hold,  with  a  fair  number  of 
good  authorities,  that  under  the  old  system,  except  in  the  legis 
actio  per  condictionem,  there  may  have  been  in  all,  and  must  have 
been  in  some  cases,  a  brief  statement  as  to  the  specific  kind  or 
ground  of  claim,  made  before  the  magistrate  (in  jure),  partly  to 
enable  him  to  decide  broadly  whether  this  claim  came  within  the 
law  or  not,  partly  to  constitute  some  degree  of  definiteness  in 
the  reference  to  the  judex,  arbiter,  or  centumviri.  These  state- 
ments I  take  to  be  the  jura,  or  rather  the  raison  d'etre  of  the 
jura,  spoken  of  by  Gaius  in  4,  30,  where  he  speaks  of  the  nimia 
subtilitas  eorum  qui  tune  jura  condiderunt.  They  were  brief 
allegations  of  legal  principle,  based,  no  doubt,  as  far  as  possible 
upon  a  statutory  text,  but  also  often,  no  doubt,  including  state- 
ments of  law  never  embodied  in  statute,  and  sometimes  infer- 
ences or  generalizations  entirely  new.  These  were  the  subject- 
matter  of  legis  actiones  meaning  what  Muirhead  terms  "  specific 
actions,"  as  distinguished  from  legis  actiones  meaning  generic 
modes  of  pleading — those  specific  actiones  which  Sex.  ^Elius,  in 
his  Tripertita  (Pomponius,  §  38),  and  other  conditores  jurum 
endeavoured,  by  more  and  more  ingenious  refinements,  to  adapt 
to  new  requirements  less  and  less  capable  of  being  brought  under 
the  rigid  old  law. 

How  hazardous  became  these  subtle  statements  of  law,  as  the 
opening  claim,  made  orally  and  irrevocably  by  the  party  or  his 
patronus,  before  the  Magistrate  ;  how  they  came  to  be  superseded 
by  special  statements  of  the  case  (verba  concepta),  capable  of 
amendment  and  mutual  settlement  in  jure  in  the  Magistrates' 
Court  before  they  were  sent  down  to  the  judex;  how,  in  fine, 
the  legis  actiones  were  replaced  by  the  formulary  system,  it  is 
not  my  business  here  to  tell.  My  object  is  simply  to  point  out 
a  natural  meaning  of  condere  jura,  which  is  accountable  for  in 


PAPINIAN  27 

the  early  system  of  procedure,  and  was  presumably  retained  in 
the  later.  For  there  is  no  reason  to  believe  that  this  "  statement 
of  general  principles,"  which  is  properly  indicated  by  the  phrase, 
ceased  to  be  employed  by  prudentes  under  the  formulary  system, 
whether  in  the  building  up  of  the  reference  to  the  judex  or  in  the 
opinion  read  to  him  at  the  hearing  ;  while  it  was  equally  or  more 
applicable,  as  we  see  from  the  evidence  of  extant  writings,  to 
the  practice  of  the  legal  teacher  instructing  his  pupils. 

Dual  Capacity  of  the  "  Prudens  "  :  Counsel  and  Teacher. — In 
fact,  when  considering  their  answers  or  opinions,  we  must  never 
lose  sight  of  the  double  capacity  filled  by  almost  every  prudens  of 
eminence  in  the  later  republican  and  early  imperial  times.  At 
first  perhaps  only  a  consulting  counsel,  he  gradually  became, 
almost  more  conspicuously,  a  teacher  of  law.  His  opinions  were 
delivered,  not  only  upon  cases  coming  before  the  Courts,  but  upon 
questions  raised  in  the  Schools.  And  from  this  double  position 
we  find,  as  we  might  expect,  in  all  his  dicta,  even  where  opinions 
are  given  on  a  case  and  in  no  way  systematized  into  an  educational 
work,  a  generality  and  an  endeavour  to  lay  down  principles  which 
is  as  far  as  possible  removed  from  the  guarded  barrenness  of  some 
English  judgments  (of  all  good  judgments  as  represented  by 
Austin)  or  a  modern  counsel's  opinion . 

This  characteristic  has  been  specially  remarked,  as  we  saw 
above,  in  the  instance  of  Papinian  ;  but  the  same  treatment,  by 
other  leading  jurists,  of  cases  whether  actual  or  hypothetical, 
is  very  obvious  in  the  numerous  Responsa,  Opiniones,  Disputa- 
tiones,  Qucestiones,  etc.,  of  the  Digest — where,  of  course,  the  fact 
that  all  were  ultimately  turned  into  so  many  leges  by  Justinian 
makes  no  difference  in  the  original  character  of  the  extracts 
themselves. 

Form  of  "Responsa"  as  General  Maxims:  Their  Growing 
Authority. — With  regard,  then,  to  form,  it  is  probable  that  the 
views  even  of  contemporary  jurists,  consulted  on  an  actual  case 
sub  judice,  were  stated  rather  in  the  shape  of  general  maxims. 
With  regard  to  ultimate  effect,  it  seems  likely  that,  even  in  Gaius's 
time,  the  conflict  contemplated  by  him  was  possibly  one  between 
maxims  delivered  at  different  tunes  and  cited  to  the  judex  for 
some  case  to  which  they  had  no  original  reference.  The  sententice 
et  opiniones  had  assumed,  in  practice  if  not  by  legislative  sanc- 
tion, a  persistent  authority,  which  in  time  communicated  itself 
to  other  sententice  and  opiniones,  never  connected  with  actual 


28  PAPINIAN 

cases  at  all.  For,  by  the  date  of  Constantine,  it  is  certain  that 
such  authority  was  enjoyed,  not  only  by  responsa  to  consultations 
or  inquiries,  but  by  the  works  in  general  of  some  at  least  among 
the  licensed  jurists,  that  order  having  ceased  to  exist  for  nigh 
upon  a  hundred  years.  Hence  it  is  that  we  find,  in  Justinian's 
Digest,  so  large  an  amount  of  matter  quoted  from  treatises — 
dogmatical,  institutional,  or  exegetical — which  are  pure  text- 
book law  :  general  propositions  not  in  the  least  resembling 
individual  precedents,  whether  actual  or  hypothetical,  nor  like 
answers  to  particular  questions.  I  need  not  do  more  than  refer 
to  the  unreasonable  manner  in  which  these  general  propositions 
are  questioned  or  condemned  by  Austin  (Lect.  37 ;  see  Practical 
Jurisprudence,  p.  299),  who  forces  them  into  his  hidebound  con- 
ception of  case  law. 

It  is  not  my  purpose,  either,  to  enter  here  into  the  subject  of 
precedents  proper,  in  Roman  law — into  the  influence,  that  is, 
which  a  particular  judgment  has,  as  in  our  law,  upon  similar 
subsequent  cases.  In  spite  of  the  oft-quoted  passage  in  Cicero's 
Topica  (5,  28),  I  venture  to  question  whether  res  judicata  had 
ever  the  exact  meaning  of  an  individual  precedent.  In  the  case 
of  decisions,  indeed,  by  the  emperor,  or  the  person  to  whom  his 
supreme  jurisdiction  was  delegated,  a  special  principle  of  prece- 
dents was  recognized,  but  with  considerable  variation,  during  the 
legislative  period  from  Hadrian — possibly  from  the  beginning  of 
the  empire — to  Justinian.  It  was  distinctly  abandoned  in  a 
constitution  of  Arcadius  and  Honorius,  A.D.  398  (Cod.  Theod. 
1,  2,  11),  but  finally  recognized  by  Justinian  in  his  Code  (1,  14, 
12  pr.)  A.D.  529. 

Conflicts  of  Opinion  and  the  "Lex  Citationum"  of  Theo- 
dosius. — The  remaining  history  of  the  sententice  et  opiniones 
prudentium  is  short  and  fairly  clear  :  it  contains,  moreover,  an 
interesting  recognition  of  the  superior  merits  of  Papinian.  The 
unanimity  of  opinions  which  had  been  required  by  Hadrian,  for 
binding  effect,  naturally  became  more  and  more  rare  as  the  num- 
ber of  such  opinions  increased.  Accordingly,  we  find  Constantine 
(in  A.D.  321,  327)  complaining  of  the  never-ending  contentiones 
prudentium — the  authors  mentioned  being  long  dead — abrogating 
the  notes  of  Paulus  and  Ulpian  upon  Papinian,  but  subsequently 
confirming  all  the  writings  of  Paulus.  These  constitutions  of 
Constantine  were  followed  a  hundred  years  later  by  the  so-called 
Lex  Citationum  (a  late  designation)  of  Theodosius  II.  and  Valen- 


PAPINIAN  29 

tinian  III.  (A.D.  426).  I  give  the  main  upshot  of  this  enactment, 
avoiding  its  special  difficulties.  It  confirms  the  entire  writings 
of  Papinian,  Paulus,  Ulpian,  Modestinus,  and  Gaius,  expressly 
giving  the  last-named  author  equal  authority  with  the  others. 
Validity  is,  at  the  same  time,  conferred  upon  the  writings  of  a 
number  of  authors  habitually  quoted  by  all  the  above-named 
five — among  whom,  we  may  remark,  is  included  Sabinus,  the 
first  licensed  prudens.  In  case  of  a  divergency  or  conflict, 
Papinian's  view  is  to  prevail  over  that  of  any  one,  but  not  two 
of  the  other  writers  ;  the  comments  upon  him  being  again  formally 
deprived  of  weight,  though  an  absolute  authority  is  given  to  the 
"  Sentences  "  of  Paulus.  Where  two  jurists  equal  hi  the  scale 
conflict,  the  judge  is,  of  course,  to  choose. 

This  law  is  specially  valuable  as  explaining  difficulties  which 
arise  out  of  the  list  of  authors  quoted  in  Justinian's  Digest.  The 
collection  purports  to  be  made  from  the  books  of  those  old 
prudentes  to  whom  previous  emperors  had  given  authority  for 
compiling  and  interpreting  laws  (conscribendarum  interpre- 
tandarumque  legum,  Const.  Deo  Auctore,  §  4). 

Whatever  condere  jura  originally  meant,  these  words  certainly 
indicate,  for  the  subject-matter  spoken  of,  generality  of  form 
and  subsisting  authority.  The  authors  cited  ought  at  first  sight 
to  be  confined  to  the  authorized  or  licensed  prudentes.  They 
are,  in  fact,  quoted  as  early  as  Q.  Mucius  Scaevola,  who  died 
82  B.C.,  before  Augustus  was  born.  The  presence,  then,  of  this 
and  other  jurists  who  wrote  before  the  licensing  system  is  ac- 
counted for  by  their  quotation  in  the  writings  of  the  five  principal 
or,  as  they  are  sometimes  called,  academic  authorities  specified 
in  the  Laws  of  Citations.  The  same  statute,  it  was  remarked, 
expressly  includes  Sabinus,  whom  we  should  have  expected  to 
appear  in  his  own  right.  This  gives  a  strong  reason  for  thinking 
that  the  opinions,  even  of  the  licensed  jurists,  were  not  intended 
to  have  a  binding  force  as  precedents  or  general  rules  before  the 
time  of  Hadrian's  rescript,  if  then. 

We  may  also  infer  from  the  language  of  the  Lex  Citationum 
that  Papinian,  Paulus,  Ulpian,  and  Modestinus  most  probably 
did,  and  Gaius  did  not,  belong  to  the  privileged  class. 

The  "  Digest  "  of  Justinian. — The  objections  are  obvious  to 
such  a  mechanical  or  arithmetical  estimate  of  opinions  as  that 
above  described.  Justinian  accordingly  converted  all  the 
passages  which  he  embodied  in  his  Digest  into  some  many  leges, 


30  PAPINIAN 

and  placed  them  on  an  indiscriminate  level  (Const.  Deo  Auctore, 
§  6).  As  this  was  to  be  henceforth  the  sole  book  of  reference, 
contradictions  were,  of  course,  not  to  be  admitted,  nor  obsolete 
matter  (ibid.,  §§  8,  10) — a  direction  only  imperfectly  carried  out. 
There  are,  it  must  be  admitted,  irreconcilable  contradictions  in 
the  Digest,  which  can  by  no  sophistry  be  explained  away  ;  which, 
on  the  other  hand,  give  us,  as  marshalled  by  the  date  of  their 
cited  authors,  many  interesting  examples  of  the  gradual  develop- 
ment which  takes  place  in  principles  of  practical  law. 

The  "  Feast  "  of  Papinian. — One  last  word  as  to  Papinian. 
In  the  old  course  of  legal  study  which  obtained  down  to  the  time 
of  Justinian,  who  remodelled  it  in  accordance  with  his  own 
codification,  the  students  were  first  introduced  to  the  special 
reading  of  Papinian's  Responsa  in  their  third  year,  whence  these 
third-year  men  were  called  Papinianistce,  and  kept  a  feast  or  high 
day  in  honour  of  their  author  (Const.  Omnem,  §  4).  Justinian, 
in  order  to  retain  in  part  the  old  study  of  this  year,  and  to  keep 
alive  the  respect  due  to  that  great  name,  contrived  a  somewhat 
artificial  order  and  composition  of  the  Books  20,  21,  and  22,  with 
which  the  Umbilicus,  or  central  part,  of  his  Digest  begins.  These 
books  are  accordingly  called  by  certain  anonymous  annotators 
of  the  twelfth  and  fourteenth  centuries  (as  being  instead  of 
Papinian)  Antipapian  or  Antipapin.  The  former  curious  cor- 
ruption of  the  name  has  been  mentioned  above  (p.  20).  It  is 
just  conceivable  that  the  further  one,  of  Papin,  may  have  given 
rise  to  an  honoured  name  in  French  natural  science.  Of  any 
calembour  suggested  by  Denys  Papin's  best-known  invention  I 
am  innocent. 

The  Work  of  the  "  Prudentes  "  :  Its  Juristic  Value. — The 
institution  of  licensed  prudentes  is  often  regarded  as  the  mere 
establishment  of  a  high  court  of  civil  justice,  and  their  opinions 
as  practically  judgments  on  appeal  or  on  reserved  cases,  which 
no  doubt  they  often  were.  But,  if  I  am  right  in  the  view  here 
taken,  the  work  of  the  prudentes  from  an  earlier  period  than  that 
of  the  imperial  licence,  and  the  work  of  the  licensed  prudentes 
afterwards,  was  something  more.  It  habitually  included — on 
principle,  not  as  a  mere  obiter  dictum — some  amount  of  generali- 
zation, much  wider  than  Austin's  ratio  decidendi,  and,  moreover, 
directly  expressed  by  its  author — not  requiring  to  be  inferred 
or  extracted  by  the  laborious  processes  described  in  Austin's 
thirty-seventh  and  thirty-ninth  lectures. 


PAPINIAN  31 

The  advantage,  or  rather  the  necessity,  for  generalization  is 
only  too  apparent  for  ourselves,  with  our  enormous  and  increasing 
mass  of  case  law.  This  is  no  doubt  done,  and  very  ably  done,  to 
some  extent  in  the  headings  of  our  yearly  Law  Reports,  in  reviews, 
and  from  time  to  time  in  textbooks — the  increasing  consideration 
for  the  last  being  a  noticeable  feature  in  our  Courts.  Nor  are  our 
judges  now,  I  think,  so  averse  from  laying  down  general  rules 
or  delivering  themselves  of  general  maxims  as  they  used  to  be, 
and  as  they  are,  according  to  Austin,  in  duty  bound  to  be.  But 
the  reduction  of  that  most  important  branch  of  law  which  is 
continually  growing  out  of  the  practice  of  the  Courts,  to  an 
amount  cognoscible,  to  use  Austin's  expression,  even  by  the  pro- 
fession, becomes  daily  farther  off  than  ever. 

With  all  due  appreciation  of  the  gradual  building  up  of  our  legal 
principles  and  the  historic  value  of  the  process,  one  cannot  but 
look  with  envy,  in  the  interest  of  general  utility,  on  Justinian's 
heroic  remedy — to  secure  once  for  all,  at  whatever  cost,  an 
authoritative  Digest  of  our  present  case  law  and  make  a  clean 
sweep  of  the  past  cases.  Of  course,  case  law  must  continue  to 
go  on,  but  it  could  be  with  ease  subjected  to  a  periodic  authori- 
tative revision  and  reduction  to  the  form  of  general  rules. 

This,  far  more  than  the  mere  consolidation  of  Statutes,  seems 
to  me  the  one  chance  which  has  any  hopefulness  about  it,  of  the 
much-talked-of  Codification  of  English  Law  (see  generally 
Practical  Jurisprudence,  Part  II.,  chap.  xvi.). 


ULPIAN 

Political  Conditions  of  Ulpian's  Age. — The  social  and  political 
conditions  of  the  age  in  which  Ulpian  lived  seem  ill  adapted  to 
the  growth  and  development  of  a  great  legal  talent.  A  period  of 
stability  and  tranquillity,  in  which  the  supremacy  of  the  law  is 
secure  and  the  search  for  truth  undistracted  by  the  play  of 
violent,  elemental  passions,  would  appear  indispensable  for  the 
fruitful  pursuit  of  legal  as  of  other  kinds  of  knowledge.  Con- 
cerned as  he  is  at  every  point  with  questions  of  right  and  wrong 
in  human  conduct,  the  student  of  law  is  not  unlikely,  when 
passions  run  high,  to  swerve  from  the  strait  path  of  single- 
minded,  unbiassed  truth-seeking.  It  happens  often  enough,  in- 
deed— as  our  own  history  shows — that  great  lawyers  rise  to 
eminence  in  periods  of  storm  and  stress,  when  the  reign  of  the 
law  itself  is  imperilled.  But  the  truth  seems  to  be  that  the  forces 
of  human  character  which  are  evoked  on  such  occasions  as  these 
are  the  forces  of  political  rather  than  of  specifically  legal 
instinct. 

The  period  covered  by  the  last  part  of  the  second  and  the  early 
years  of  the  third  century  of  our  era  was  certainly  not  a  period  of 
tranquillity,  though,  on  the  other  hand,  it  cannot  be  said  that 
the  supremacy  of  the  law  was  seriously  in  danger.  It  is  true 
there  was  a  great  deal  of  lawlessness  "  in  high  places,"  and  within 
the  sphere  of  high  political  intrigue  human  life  was  held  very 
cheap,  and  the  claims  of  justice  and  morality  were  frequently  and 
flagrantly  ignored.  Nevertheless,  as  far  as  the  great  mass  of 
mankind  was  concerned,  the  strong  legal  machinery  of  the  Roman 
Empire  worked,  in  all  probability,  smoothly  and  efficiently.  Men 
bargained  and  sold,  let  and  hired,  managed  their  property  and 
made  their  wills,  under  the  full  protection  of  the  law,  and  of  a 
law  to  the  development  and  shaping  of  which  some  of  the  wisest 
minds  of  all  ages  had  contributed,  and  were,  at  that  very  moment, 
still  contributing. 

32 


ULPIAN  33 

On  the  other  hand,  no  period  ever  had  less  claim  to  be  ranked 
as  tranquil.    While  Ulpian  was  growing  to  manhood  (the  exact 
year  of  his  birth  is  uncertain,  but  we  shall  probably  not  be  very 
wide  of  the  mark  if  we  assume  it  to  have  been  about  A.D.  180), 
Septimius  Severus  was  Emperor  of  Rome  (A.D.  193-211).   He  had 
"  waded  through  slaughter  to  a  throne,"  and  for  some  twenty 
years  he  succeeded  in  maintaining  his  supremacy  by  that  sinister 
combination  of  shrewdness  and  cruelty  which,  in  such  times  as 
his,  is  apt  to  take  the  place  of  statesmanship.    During  all  these 
years  the  law  was  inflexibly  upheld,  and  justice  was  wisely  and 
impartially  administered.      But  when  Severus  died,  the  chaos 
which  he  had  foreseen  set  in.    The  hatred  which  had  smouldered 
for  some  years  between  his  two  sons  Caracalla  and  Geta  burst 
into  full  flame.     In  the  short,  fierce  struggle  which  ensued,  Cara- 
calla is  reported  to  have  caused  no  less  than  twenty  thousand 
persons  to  be  put  to  death  on  the  ground  that  they  were  partisans 
of  Geta.     Such  was  the  reign  of  terror  that  no  one  (we  are  told 
by  Dion  Cassius)  ventured  to  utter  the  hated  name  of  Greta  in  the 
presence  of  the  Emperor  and  his  friends,  and  the  very  estates  of 
those  who  introduced  it  into  their  wills  were  ordered  to  be  con- 
fiscated.   Nor  did  the  murder  of  Geta  and  the  extirpation  of  his 
adherents  appease  the  fury  of  Caracalla.    From  the  capital  he 
turned  his  mad  frenzy  against  the  provinces .     ' '  Every  province, ' ' 
Gibbon  tells  us  (cap.  6),  "  was  by  turns  the  scene  of  his  rapine 
and  cruelty.    The  senators,  compelled  by  fear  to  attend  his 
capricious  motions,  were  obliged  to  provide  daily  entertainments 
at  an  immense  expense,  which  he  abandoned  with  contempt  to 
his  guards.  .  .  .     The  most  wealthy  families  were  ruined  by 
partial  fines  and  confiscations,  and  the  great  body  of  his  subjects 
oppressed  by  ingenious  and  aggravated  taxes.     In  the  midst  of 
peace,  and  upon  the  slightest  provocation,  he  issued  his  com- 
mands at  Alexandria  in  Egypt  for  a  general  massacre.    From  a 
secure  post  in  the  temple  of  Serapis  he  viewed  and  directed  the 
slaughter  of  many  thousand  citizens,  as  well  as  strangers,  with- 
out  distinguishing   either  the   number   or   the    crime    of   the 
sufferers." 

Ulpian's  Literary  Activity. — It  was  while  events  such  as  these 
were  taking  place,  while  "  a  monster  whose  life  disgraced  human 
nature  "  was  at  the  head  of  the  Roman  Empire,  that  Ulpian 
composed  the  greater  part  of  his  legal  works.  Whether  (as 
Mommsen  thinks)  the  larger  portion  of  his  great  treatise  Ad 

4 


34  ULPIAN 

Edictum  (in  eighty-three  books)  was  written  before  the  reign  of 
Caracalla,  or  whether  the  whole  of  it  was  written  during  tbat 
reign,1  it  is  certain  that  his  literary  output  during  this  period  was 
enormous.  Besides  the  treatise  Ad  Edictum,  we  should  probably 
assign  to  this  reign,  not  only  the  elaborate  commentary  on  the 
ius  civile  (in  fifty-one  books)  known  as  the  Libri  ad  Sabinum,2 
but  also  a  number  of  monographs  on  sundry  statutes,  treatises 
on  the  functions  of  the  different  magistrates,3  two  books  of 
Institutes,  and  other  works.4 

Early  Career. — There  would  be  nothing  very  exceptional  in  the 
spectacle  of  Ulpian's  quietly  composing  lengthy  treatises  on  legal 
subjects  while  Borne  was  (figuratively  speaking)  burning,  if  he 
had  been  by  temperament  a  student.  But  such  was  very  far 
from  being  the  case.  Throughout  his  life  he  was  in  close  touch 
with  political  affairs,  either  as  an  actual  participator  or,  at  any 
rate,  as  a  keenly  interested  and  vigilant  observer.  He  appears 
for  the  first  time  in  public  life  at  a  comparatively  early  age.  In 

1  This  is  the  work  the  excerpts  from  which  in  the  Digest  are  stated  to  be 
more  numerous  than  the  excerpts  from  all  the  works  of  any  other  single  jurist. 

2  The  Sabinus  referred  to  is,  of  course,  the  famous  jurist  Masurius  Sabinus 
(the  author  of  the  libri  tres  iuris  civilis),  who  lived  in  the  reign  of  Tiberius. 
Lampridius,  one  of  those  "  wretched,  untrustworthy  writers  "  (as  Puchta 
calls  them)  on  whom  we  have  to  fall  back,  for  want  of  any  bettor,  for  much 
of  our  information  concerning  this  whole  period,  confuses  him  with  a  friend 
of  Alexander  Severus  called  Sabinus — a  characteristic  piece  of  ignorance 
and  slipshodness. 

3  Ono  of  those,  De  off  do  Proconsulis  libri  X. — which  was  a  treatise  on  the 
criminal  law — dealt,  amongst  other  things,  with  the  penal  laws  then  in  force 
against  tho  Christians.     It  is  extremely  unlikely  that  Ulpian,  whose  only 
business  was  to  present  a  complete  account  of  the  existing  criminal  law, 
expressed  either  approval  or  disapproval  of  the  penal  statutes  in  question. 
Most  probably  he      cared  for  none  of  those  things,"  apart  from  their  legal 
aspect.      Nevertheless    he   came   to  bo  regarded  in  the  Middle  Ages  as  a 
vehement  enemy  of  the  Christians.     The  charge  probably  originated  in  a 
passage  in  the  Institution's  Divines  of  Lactantius  (V.  11) :  "  Domitius  de  officio 
rroconsulis  libris  VII.  (sic)  rescripta  principum  nofaria  collegit,  ut  doceret 
quibus  pu>nis  affici  oportoret  eos  qui  so  cultores  Dei  confiterentur ;"  and 
elwiwhoro  Lactantius  speaks  of  tho  '  constitutionos  sacrilegje  et  disputationes 
iurisperitorum  iniustoc  "  directed  "  contra  pios."     To  which  statements  an 
old  commentator  adds  tho  quaint  remark  that  he  had  hitherto  borne  a  certain 
grudge  against  Justinian  for  abolishing  the  writings  of  tho  old  jurists  with 
a  view  to  compiling  his  Pandects  ;  "  nunc  vero  praeterea  etiam  hominem  laudo 
qui  inccstas  illas  ot,  ut  (Lactantius)  noster  vocat,  sacrilegas  (constitutionos) 
au.stulit." 

4  A  complete  list  of  Ulpian's  works  will  bo  found  in  Rudorffs  Rumisclie 
Rechitgeschichte,  vol.  i.,  pp.   190,  191.     See  also  Dr.  Roby's  Introduction  to 
the  Study  of  Justinian's  Digest,  pp.  199,  200.     There  is  much  uncertainty 
as  to  the  dates  when  many  of  his  books  (e.g.  the  two  books  of  Responsa,  the 
Liber  singulari*  Rcyulnrnm)  wore  composed.     Much  of  his  work  was  done 
in  the  reign  of  Heliogabalus.     Tho  treatise  De  adulleriis  was  certainly  written 
after  Caracalla'H  reign. 


ULPIAN  35 

the  reign  of  Septimius  Severus  he  was  an  assessor  in  the  audi- 
torium of  Papinian,  and  served  as  a  member  of  the  Imperial 
Council.  There  are  some  stories  afloat  as  to  the  existence  of  a 
certain  rivalry  between  him  and  Papinian,  and,  according  to 
Rudorff  (Rechtsgeschichte,  i.,  p.  189),  he  was  even  implicated  in 
the  fall  of  his  great  predecessor.  But  the  evidence  for  all  such 
allegations  is  extremely  untrustworthy.  Under  Caracalla  he  held 
the  post  of  scriniorum  magister  (Master  of  the  Records),  Paul 
being  at  the  same  time  adlibellos  (Master  of  Petitions). 

Heliogabalus :  ITlpian's  Tyrian  Extraction. — Under  Helioga- 
balus,  the  High  Priest  of  the  Syrian  Sun-God,  who  succeeded 
Caracalla  after  the  brief  but  sanguinary  interlude  of  Macrinus' 
reign,  Ulpian  appears  to  have  suffered  a  check  in  his  career. 
He  was  deprived  of  all  his  dignities,1  banished  from  Rome,  and 
e  ven  threatened  with  execution.  During  the  five  years  of  Oriental 
effeminacy  and  despotism  which  marked  the  Syrian's  reign 
(A.D.  218-222),  Ulpian  appears  to  have  devoted  himself,  in  the 
main,  to  literary  work,  though  he  doubtless  kept  a  watchful  eye 
on  public  affairs.  There  were  indeed  good  reasons  why  Ulpian 
should  feel  a  kind  of  special,  personal  interest  in  the  politics  of 
the  Court  at  that  time.  Heliogabalus  (whose  mother,  Soaemias, 
was  a  first  cousin  of  Caracalla  and  Greta,  and  a  sister  of  Julia 
Mamsea,  the  mother  of  the  future  Emperor  Alexander  Severus) 
was  the  first  Roman  Emperor  of  Asiatic  extraction.  Now,  Ulpian 
— as  he  tells  us  himself  in  a  passage  which  has  been  preserved  to 
us  in  the  Digest2 — was  of  Tyrian  origin.  Strong  as  was  the 
solidarity  of  the  Roman  Empire,  and  powerful  as  were  the  ten- 
dencies of  the  time  towards  an  elimination  of  the  smaller  local 

1  According  to  some  accounts  these  dignities  included  the  highest  post 
of  all,  that  of  Prcefectus  Prcetorio,  with  which  Heliogabalus  had  invested  him. 
According  to  other  accounts  ho  did  not  become  Prcefectu^  Prcetorio  till  the 
reign  of  Alexander  Soverus. 

2  50,  15,  1  pr.     "  Sciendum  est  esse  quasdam  colonias  iuris  Italic!,  ut  est 
in  Syria  Phoenico  splendidissima  Tyriorum  colonia,   undo  mihi  origo  est, 
nobilis  regionibus,  serie  seculorum  antiquissima,  armipotens,  fcederis  quod 
cum  Romanis  percussit  tenacissima."     The  words  "  undo  mihi  origo  est  " 
seem  to  indicate  that  Tyre  was  not  his  actual  birthplace.     Bremer  (Rechts- 
lehrer  u.  Rechtsschulen  im  romischen  Kaiserreich,  p.  87)  suggests  that  he  may, 
at  any  rate,  have  resided  at  Tyre  for  some  time,  and  may  have  been,  tem- 
porarily, professor  at  the  University  of  Berytus.     It  is  remarkable  how 
prominently  Syria  and  Syrians  figure  in  this  period  of  Roman  history.     It 
is  quite  possible  that   Papinian  was   a   Syrian  (see  p.  17  of  this  volume). 
Julia  Domna,  the  wife  of  Severus,   was  a  Syrian.     Ulpian,  the  Emperor 
Heliogabalus,  and  Julia  Mamaea  (see  the  text  above)  were  all  Syrians.     The 
Emperor  Maerinus  held  a  Court  at  Antioch,  and  a  battle  fought  in  Syria  put 
an  end  to  his  short  reign. 


36  ULPIAN 

patriotisms  in  favour  of  a  wider  Imperial  unity,  nevertheless  it 
is  clear  that  Ulpian  retained  throughout  his  life  a  keen  personal 
interest  in  Tyre  and  things  Syrian.1    The  accession  of  the  priest 
of  Emesa  as  the  first  emperor  of  Asiatic  extraction— Emesa  was, 
like  Tyre  and  Berytus,  an  important  Syrian  town— naturally, 
therefore,  added  a  stimulus  to  Ulpian's  interest  in  public  affairs, 
and  inspired  him  with  the  hope  of  rising  to  a  still  higher  eminence 
than  any  to  which  he  had  previously  attained.2    Julia  Mamaea,  a 
clever  and  ambitious  woman,  had  probably  foreseen  that  the 
eccentric  rule  of  Heliogabalus  would  inevitably  be  short-lived, 
and  had  been  quietly  preparing  the  way  for  the  proclamation 
of  her  son  Alexander  as  Emperor.    Ulpian  appears  to  have 
gained  the  full  confidence  of  Mamaea,  and  may  have  assisted 
her  with  advice  in  carrying  her  designs  into  execution.    About 
A.D.  222,  at  any  rate,  he  held   the  post  of  prcefectu*  annonce 
(Commissioner  of  Corn  Supply),  and  no  sooner  had  the  dagger 
put  an  end  to  the  tragi-comedy  of  the  Sun-Priest's  rule,  than  we 
find  Ulpian  forthwith  installed  as  the  guide,  philosopher,  and 
friend  of  the  sixteen-year-old  Emperor. 

Friendship  of  Alexander  Severus. — For  the  rest  of  his  life 
Ulpian  retained  the  complete  confidence  of  his  Imperial  master 
and  (what  was  perhaps  more  important)  his  Imperial  mistress.  In 
one  place  Alexander  speaks  of  him  as  "amicus  meus,"  in  another  as 
"  parens  meus,"  and  several  passages  in  the  historians  bear  testi- 
mony to  the  close  personal  relationship  which  existed  between 
Emperor  and  jurist.3  Ulpian  was  now,  and  remained  for  some 
six  years,  the  virtual  Regent  of  the  Empire,  "  a  partner  "  (to  use 

1  Thus  in  tho  passage  already  quoted  from  the  Digest  in  the  last  note, 
t  hero  is  a  pleasant  ring  of  pride  in  the  antiquity  and  natural  beauty  of  Tyre, 
though  at  tho  samo  time  its  obligations  as  a  city  of  no  moan  Empire  are 
emphasized.     In  other  passages  Ulpian  mentions  Syria,  and  Asia,  and  the 
Punic  language.  Thus  in  Dig.  32, 11  pr.,  after  stating  that  fideicommissa  could 
lx>  expressed  in  any  language,  he  adds,  "  non  solum  Latina  vel  Grseca,  sed 
etiam  Punica  vol  Gallicana  vel  alterius  cuiuscumque  gentis."  Again  in  Dig.  45, 
1,  1,  6,  after  stating  the  rule  that  a  stipulatio  is  valia,  if  tho  question  is  put  in 
Lit  in  and  tho  answer  given  in  Greek,  or  vice  versa,  "  dummodo  congruenter 
rospondoatur,"  ho  proceeds  to  ask  whether  this  rule  is  limited  to  Greek, 
or  whether  it  is  equally  applicable  to  other  languages,  "  Poenum  forte  vol 
Aaflyrium  vol  cuius  altorius  lingua;,"  and  ho  decides  that  any  language  will 
sorvo,  "  ita  tamon  ut  utorquo  altorius  linguam  intelligat  " — a  characteristic 
piece  of  minute  comment  on  a  matter  of  growing  practical  importance. 

2  It  is  assumed  hero  that  Ulpian  did  not  become  Prcefectus  Prcetorio  till 
tho  roign  of  Alexander.     But  see  p.  35,  note  1. 

3  Thus  wo  are  told  that  Ulpian  was  one  of  the  only  two  people  whom 
Alexander  would  see  alono,  and  was  a  constant  guest  at  the  Emperor's 
table. 


ULPIAN  37 

the  words  of  Zosimus)  "  in  the  Imperial  power."  His  actual  posi- 
tion is  variously  described.  According  to  some  reports  the  office 
of  Prcefectus  Prcetorio1  was,  so  to  speak,  held  in  commission  by 
Ulpian  and  two  other  persons,  Flavianus  and  Chrestus,  though  it 
would  seem  that  the  latter  were  soon  removed,  Ulpian  thus 
becoming  sole  Prcefect.  According  to  another  account,  Ulpian 
was  President  of  a  Council  of  sixteen  Senators  specially  selected 
by  the  Emperor  to  discuss  public  matters  of  moment  and  to 
advise  the  Emperor  thereon.  Anyhow,  his  duties  were  of  a  most 
exacting  character,  and  he  found  no  leisure  for  literary  activity. 
Alexander's  attention  to  the  judicial  duties  of  the  Emperor  is 
stated  to  have  been  most  assiduous,  and  it  is  probable  that  Ulpian 
bore  the  largest  share  in  lightening  the  heavy  burden  of  work 
which  devolved  on  the  Emperor  as  the  supreme  fountain  of  justice 
throughout  the  Empire.  We  are  told  that  Alexander  devoted 
the  greater  part  of  the  mornings  and  a  large  part  of  the  afternoons 
to  the  consideration  of  letters  and  petitions  ;  and  in  exercising 
that  "  patience  and  discretion  above  his  years  "  which,  as  Gibbon 
says,  he  showed  in  the  determination  of  private  causes,  he  was 
presumably  largely  guided  by  the  wide  knowledge,  ripe  experi- 
ence, and  shrewd  wisdom  of  Ulpian.2 

Military  Opposition  to  Ulpian :  his  Death. — But  the  difficulties 
of  Ulpian  were  not  merely  those  of  a  very  hard-worked  official. 
Strong  as  he  was  in  the  favour  of  the  Emperor  and  his  mother, 
his  position  was  far  from  secure.  His  promotion  excited  a  con- 
siderable amount  of  jealousy  which  gradually  developed  into 
open  hostility,  and  ultimately  led  to  his  destruction.  It  is  not 
easy  at  the  present  day  to  determine  the  exact  nature  of  the  dis- 
pute between  Ulpian  and  his  foes.  His  steady  opposition  to  the 
increasing  influence  of  the  military  caste  is  probably  rightly 
assigned  as  the  main  cause  of  the  quarrel,  though  it  is  not  un- 
likely that  a  certain  amount  of  his  unpopularity  was  due  to 
personal  reasons.  Ulpian  was  not  only  a  clever  lawyer,  but  also 
an  adroit  courtier,  and  we  are  perhaps  not  doing  him  any  in- 

1  The  Prcefectus  Prcetorio,  who  was  originally  merely  the  Captain  of  the 
Guards,  had  gradually  become  the  first  officer  of  the  State,  the  direct  repre- 
sentative of  the  Emperor  not  only  in  military,  but  also  in  legal  and  financial 
matters. 

2  "  Wise  "  is  the  favourite  adjective  applied  by  Gibbon  to  Ulpian.     In 
Novel  97,  6,  Justinian  calls  him  rbv  ao^rarov ;  in  Cod.  6,  51,   9,   ho  is 
referred  to  as  "  summi  ingenii  vir,"  and  elsewhere  (by  Diocletian,  Cod.  9, 
41,  11),  as  "  vir  prudentissimus."     Such  adjectives  are  bandied  about  pretty 
freely  in  connection  with  the  great  jurists,  But  they  are  certainly  appropriate 
in  the  case  of  Ulpian. 


3R  TJLPIAN 

justice  if  we  assume  that  he  was  no  more  averse  to  intrigue  than 
most  of  the  Court  officials  of  the  time.     By  temperament  he  was 
probably  out  of  sympathy  with  the  military  class,  and  indeed 
the  influence  and  unbridled  licence  of  the  praetorian  guards  must 
have  been  wellnigh  intolerable  to  any  one  to  whom  the  supremacy 
of  the  law  and  orderly  administration  were  matters  of  prime  con- 
cern.   The  Emperor  himself  was,  in  a  large  measure,  at  the  mercy 
of  his  soldiers.    He  could  only  maintain  his  authority  by  keeping 
the  praetorian  guards  in  a  good  humour.  Firmness  and  discipline 
had  to  be  tempered  with  a  liberal  admixture  of  flattery  and 
indulgence.    In  Severus's  time  the  praetorian  guards — originally 
the  flower  of  Italian  youth  ("Italiae  alumni  et  Romana  vere 
iuventus  ":  Tacitus,  Hist.  i.  84) — were  largely  recruited  from 
other  parts  of  the  Empire,  e.g.  Macedonia  and  Spain.     The 
bonds  of  discipline,  which  an  honourable  tradition  of  close  associa- 
tion with  the  ancient  centre  of  the  Empire  had  helped  to  main- 
tain, were  thus  gradually  relaxed.    The  praetorians,  having  long 
enjoyed  a  virtual  immunity  for  their  excesses,  had  grown  im- 
patient of  restraint.    It  is  probable  that  Alexander's  efforts 
to  abridge  the  privileges  of  the  praetorians  were  strongly  backed 
by  Ulpian,  whose  influence  at  Court  since  the  removal  of  Flavianus 
and  Chrestus1  was  almost  unchallenged.    After  a  lengthy  period 
of  plotting  and  counter-plotting  and  smouldering  hatred,  some 
accident  precipitated  the  catastrophe  in  the  year  228.    A  formid- 
able riot  broke  out  in  Rome  and  lasted  three  days.     Knowing 
his  life  to  be  hi  danger,  Ulpian  took  refuge  in  the  Imperial  palace, 
but  the  angry  soldiery  forced  their  way  in  and  slew  him  in  the 
very  presence  of  Alexander  and  Mameea.2    So  powerful  was  the 
influence  of  Ulpian's  enemies  that  Alexander  did  not  venture 
openly  to  punish  the  ringleader  of  the  riot,  who  was  removed  to 
a  nominal  post  of  honour  in  Egypt,  and  subsequently  transferred 
to  Crete.    There  he  was  quietly  put  out  of  the  way  some  time 
afterwards,  when  the  excitement  caused  by  the  riot  had  subsided. 
Ulpian's  Special  Excellence  as  a  Jurist. — Such  was  the  life  of 
this  remarkable  Roman,  who,  thanks  to  the  liberal  extent  to 

1  See  above,  p.  37.  It  is  probable  that  Flavianus  and  Chrestus  were 
opposed  to  the  influence  of  Mamaea  and  to  the  curtailment  of  the  privileges 
of  the  praetorians.  An  epitomator  of  Dion  Cassius  says  they  were  removed 
by  foul  moans  to  which  Ulpian  was  privy,  but  there  is  no  evidence  to  support 
this i  allegation.  Flavianus  and  Chrestus  are  sometimes  spoken  of  as  Ulpian's 
predecessors,  elsewhere  as  holding  office  for  a  time  jointly  with  him. 

The  whole  story  of  the  death  of  Ulpian  is  passed  over  by  the  writer  of 
the  life  of  Alexander  Severus  in  the  Augustan  Histories— another  example 
of  the  untrustworthiness  of  much  of  our  material  for  the  history  of  this  period. 


TTLPIAN  39 

which  Justinian's  compilers  drew  on  his  works  in  composing  the 
Digest,  has  probably  exercised  a  larger  influence  over  European 
jurisprudence  than  any  other  jurist.  To  say  this  is  not  equivalent 
to  saying  that  he  was  one  of  the  very  greatest  jurists.  Ulpian 
was  not  a  lawyer  of  the  strong,  originative  type  like  Labeo, 
Salvius  Julianus,  and  Papinian,  the  type  that  may  be  said  to 
create — or,  rather,  to  discover — the  law.  Ulpian's  powers  did 
not  lie  in  the  direction  of  arduous  pioneer-work.  His  was  rather 
the  faculty  of  lucid,  orderly  exposition.  Having  mastered  the 
whole  domain  of  law  as  it  then  existed,  he  proceeded  to  apply  a 
mind  of  singular  shrewdness  and  perspicacity  to  a  restatement, 
in  his  own  terms,  of  the  rules  of  law  on  a  large  variety  of  topics. 
In  his  works  the  hard-won  achievements  of  his  great  predecessors 
are  set  forth  in  a  clear  and  agreeable  style.  Not  that  he  was  a 
mere  compiler,  a  purveyor  of  other  men's  goods.  It  is  true  that 
the  opinions  of  others  figure  rather  prominently  in  his  writings. 
But  Ulpian  did  not  simply  reproduce  other  men's  views.  What- 
ever he  took  in  was,  so  to  speak,  dissolved  and  recrystallized. 
He  had  a  keen  appreciation  of  what  was  of  permanent  value  in 
the  literature  before  him.  This  he  subjected  to  a  criticism  at 
once  acute  and  practical.  Rejecting  what  he  deemed  unim- 
portant, he  tested  what  remained  with  minute  care,  and 
expounded  it  afresh  in  his  own  clear  way,  pointing  out  the 
qualifications  and  limitations  which  the  practical  requirements 
of  the  law  seemed  to  him  to  impose  on  the  legal  propositions 
under  review. 

Lucidity  of  his  Style. — As  regards  style,  Ulpian  is  a  consum- 
mate master  of  lucid  expression — indeed,  with  Gaius,  the  greatest 
master  of  clear  exposition  among  the  Roman  jurists.1  In  his 
writings  there  is  no  mannerism,  no  affectation,  no  turgid  rhetoric.2 
The  language,  as  Dr.  Roby  points  out,3  is  "  the  ordinary  language 
of  daily  life  and  business  among  educated  persons  "  of  the  time. 
In  other  words,  it  is  simple  and  straightforward.4  Such  a  stylo 

1  We  do  not  possess  very  much  of  Ulpian's  work  in  its  original  form,  but, 
such  as  it  is,  it  amply  justifies  the  praise  that  has  been  bestowed  on  it.     Even 
as  "  edited  "  in  the  Digest,  he  exhibits  a  remarkable  power  of  lucid  exposition. 

2  As  to  this,  see  below,  p.  43,  the  observations  of  Austin. 

3  Introduction,  p.  209.     Dr.  Roby  is  speaking  of  the  classical  jurists 
generally,  but  his  remarks  are  particularly  applicable  to  Ulpian. 

*  Of  course  it  was  not  the  language  of  Cicero,  the  "  Latin  puro,  discreet " 
demanded  by  the  fastidious  scholarship  of  Browning's  Bishop  when  ordering 
an  inscription  for  his  "  Tomb  at  St.  Praxed's  Church  "  : 

"  Aha,  '  elucescebat,'  quoth  our  friend  ?  No  Tully,  said  I,  Ulpian  at 
the  best  !" 


40  ULPIAN 

is  not  indeed  without  ite  drawbacks.  True,  we  are  spared  the 
pedantries  and  artificialities  of  the  lawyers  of  some  other  ages, 
but,  on  the  other  hand,  there  is  an  occasional  looseness  of  ex- 
pression, and  in  the  flow  of  facile  utterance1  the  real  difficulties 
of  legal  problems  are  often  in  danger  of  being  hidden  out  of  sight. 
For  us,  however,  the  very  faults  of  Ulpian's  style  have  proved 
an  almost  unmixed  advantage.  The  extraordinary  readiness  of 
his  pen  enabled  him  to  enrich  juristic  literature  with  an  astonish- 
ing abundance  of  legal  matter  of  the  utmost  value.  His  very 
diffuseness  has  helped  us— as  it  helped  the  generations  which 
succeeded  him  in  the  Roman  Empire — to  understand  much  that 
is  difficult  and  obscure  in  his  predecessors.  Accordingly,  when 
Justinian's  compilers  came  to  compose  the  Digest,  the  writings 
of  Ulpian  were  more  liberally  drawn  upon  than  those  of  any 
other  jurist.  They  supply,  indeed,  the  groundwork  of  the 
Digest.  The  excerpts  from  Ulpian  (2,462  in  number,  as  com- 
pared with  2,080  from  Paul  and  595  from  Papinian)  form  about 
one-third  of  the  whole  body  of  the  Digest.  Long  as  some  of  these 
excerpts  are,  they  are  very  much  shorter  than  the  originals  from 
which  they  were  taken.  For  it  was  the  business  of  the  compilers 
"from  vain  excess  to  clear  the  encumber'd  laws,"2  and  in  per- 
forming their  task  they  subjected  Ulpian's  writings  to  a  very 
liberal  process  of  pruning.  A  comparison  of  the  Vatican  Frag- 
ments 75  to  83  (containing  the  full  text  of  Ulpian)  with  Digest 
7,  2,  1,  2  to  4  and  7,  2,  2  and  3  (where  the  "  vain  excess  "  has 
disappeared)  will  illustrate  the  extent  to  which  the  process  was 
carried.3 

Alleged  Decline  of  Roman  Jurisprudence. — It  is  said  that 
the  decline  of  Roman  jurisprudence  commences  with  Ulpian  and 
Paul.4  It  is  true  that  neither  Ulpian  nor  any  of  his  successors 
ever  attained  to  the  same  eminence  as  Julian  or  Papinian,  and  it 

In  Cod.  G,  25,  10,  the  term  "  disertissimus  "  is  applied  both  to  Papinian 
and  Ulpian.    It  seems  far  more  appropriate  to  Ulpian  than  to  Papinian. 

2  "  Son  Giuatiniano 
Che  ... 
Dontro  alle  leggi  trassi  il  troppo  e  'I  wno." 

DANTE:  Paradiso  vi.  10-12. 

3  The  two  passages  are  sot  out,  in  a  most  instructive  way,  in  parallel 
columns  in  Dr.  Robyrs  Intrtduction,  p.  73  fl.  It  is,  however,  hardly  necessary 
to  say  that  what  the  compilers  rejected  was  not  therefore  necessarily  "  vain 
excess."  The  nature  of  their  task  compelled  them  to  exclude  all  obsolete 
matter,  and  also  much  that  was  valuable,  and  oven  essential,  from  a  literary 
point  of  view.  It  would  bo  most  unfair  to  appraise  the  literary  quah'ty  of 
tLo  jurists'  \*  Tilings  by  reference  to  the  excerpts  in  the  Digest  alone. 
F.  Hofman,  Kritische  tit-udicn  zum  rvmischen  Rechte  (1885),  p.  3  ff. 


ULPIAN  41 

is  further  true  that  the  work  of  his  successors  shows  signs  of 
failing  power.  Nevertheless,  the  theory  is  apt  to  do  some 
injustice  to  Ulpian.  It  would  be  difficult  to  find  any  definite 
symptom  of  decadence  in  his  writings,  any  relaxing  of  the  intel- 
lectual grip,  any  blurring  of  the  clear,  legal  vision,  any  idle 
circumlocution  doing  duty  for  thought.  The  mere  fact  that 
Ulpian's  powers  lay  in  the  particular  direction  we  have  tried  to 
indicate  (p.  39)  is  not  enough  to  stamp  him  as  a  "  decadent." 
A  man  of  his  special  type  might  just  as  well  have  flourished,  and 
done  useful  work,  before  as  after  Papinian.  Among  his  con- 
temporaries and  successors  he  enjoyed  an  immense  prestige,  and, 
indeed,  it  was  largely  due  to  the  influence  of  Ulpian's  writings 
that  the  great  tradition  of  Roman  jurisprudence  was  so  suc- 
cessfully upheld  during  the  following  centuries,  when  the  faculty 
for  fully  appreciating  the  grand  achievements  of  the  classical 
age  was  slowly  but  steadily  dwindling.  Ulpian's  pupil  Mode- 
stinus  ("studiosus  meus,"  Ulpian  calls  him  in  Dig.  47,  2,  52,  20), 
himself  no  mean  judge  of  juristic  capacity,  ranks  Ulpian  with 
Scaevola  and  Paul  as  one  of  the  Kopv<f>aioi  r&v  VO^LKWV,  thus 
passing  over  Papinian  altogether.  And  during  the  ensuing 
centuries  the  authority  enjoyed  by  Ulpian  in  the  Courts — 
especially  in  the  Eastern  half  of  the  Empire — was  second  only 
to  that  of  Papinian,  a  fact  to  which  formal  expression  was  given 
in  Valentinian's  Law  of  Citations,  426  A.D.  (see  Professor  Clark's 
article,  loc.  cit.,  p.  4,  note  2). 

Ulpian's  Ius  Naturale. — A  brief  reference  may  here  be  allowed 
to  Ulpian's  famous  triple  division  of  law  into  ius  civile,  ius 
gentium,  and  ius  naturale,  or  law  peculiar  to  the  Romans,  law 
common  to  all  nations,  and  law  common  to  human  beings  and 
animals.  This  division  is  not,  as  is  sometimes  suggested,  peculiar 
to  Ulpian.  We  cannot,  of  course,  say  how  far  it  was  adopted 
by  the  numerous  other  jurists  whose  writings  have  not  been 
preserved  to  us.  But  as  far  as  the  Digest  is  concerned,  it  appears 
not  only  in  the  well-known  passages  from  Ulpian  in  the  first 
title  of  the  first  book,  but  also  in  two  other  passages,  in  one 
(from  Tryphoninus,  Dig.  12,  6,  64)  explicitly,  in  the  other  (from 
Hermogenianus,  Dig.  1,  1,  5)  by  necessary  implication.  Never- 
theless, it  is  true  (as  Savigny  has  conclusively  shown1)  that  the 
doctrine  in  question  exercised  no  perceptible  influence  on  the 
rules  of  Roman  law,  and  cannot  indeed  be  made  to  serve  as  a 

1  System  des  heutigen  romischen  lieclits,  i.,  Beitago  I. 


42  TJLPIAN 

basis  of  legal  classification.  To  admit  this  is  not,  however, 
equivalent  to  saying  that  the  whole  doctrine  is  as  meaningless  and 
absurd  as  Austin's  unfortunate  strictures  might  lead  one  to 
suppose.  Savigny  himself — adopting  in  its  essentials  the  defence 
of  Ulpian  by  Donellus  (I.  6) — points  out  the  true  significance  and 
value  of  Ulpian's  theory.  He  reminds  us  of  the  important  con- 
sideration that  in  every  relation  we  must  distinguish  the  matter 
and  the  form,  and  that  the  matter  of  a  legal  relation  can  be  con- 
ceived of  apart  from  its  form.  In  the  great  majority  of  legal 
relations,  such  as  ownership  or  obligation,  the  matter  is  arbitrary, 
in  the  sense  that  the  human  race  could  conceivably  continue  to 
exist  without  it.  But  what  differentiates  the  relations  men- 
tioned by  Ulpian — "  niaris  atque  feminse  coniunctio,  liberorum 
procreatio,  educatio  " — is  just  the  fact  that  then*  matter  is  not 
arbitrary,  consisting,  as  it  does,  of  natural  relations,  common  to 
human  beings  and  animals,  without  which  the  human  race  could 
not  continue  to  exist.  Ulpian's  reference  to  "  ius  "  ("  videmus 
etenim  cetera  quoque  animalia,  feras  etiam,  istius  iuris  peritia 
censeri ")  is  somewhat  fanciful  and  bizarre,  but  it  is  ridiculous 
to  suppose  that  he  really  imagined  legal  relations  to  subsist  as 
between  animals.  Ah*  he  wished  to  point  out  was  that  that  which 
constitutes  the  matter  (as  distinct  from  the  form)  of  certain 
fmidamental  legal  relations  between  men,  has  its  almost  exact 
counterpart  in  the  animal  world.  Nor  is  this  a  mere  "foolish 
conceit  "  or  "  inept  speculation  "  (Austin's  Jurisprudence,  5th  ed., 
pp.  209,  210,  552).  Ulpian's  view,  understood  in  the  sense  indi- 
cated, is,  as  Savigny  says  (loc.  cit.),  "  not  only  true,  but  important 
and  deserving  of  consideration,"  and,  though  useless  as  a^  basis 
of  legal  classification,  its  influence  on  legal  thought  in  other 
directions — not  only  in  Ulpian's  time,  but  also  centuries  after- 
wards— was  considerable.  Savigny 's  treatment  of  Ulpian's 
theory  affords  an  admirable  model  of  the  temper  and  spirit  in 
which  such  questions  must  be  approached  if  the  discussion  is 
to  yield  fruitful  results.  For  what  is  the  position  ?  A  lawyer 
of  vast  knowledge  and  experience,  a  man  steeped  in  the  tra- 
ditions of  a  great  legal  and  philosophical  past,  and  working  in 
an  atmosphere  of  strenuous  juristic  endeavour,  deliberately 
enunciates  a  particular  theory.  This  theory  is  adjudged  worthy 
of  preservation  three  hundred  years  later  by  a  body  of  lawyers 
of  far  more  than  average  attainments.  Centuries  afterwards 
the  theory  is  still  found  to  exercise  a  strong  influence  over  minds 


TTLPIAN  43 

of  the  most  different  cast.1  And,  finally,  in  our  own  age,  it  is 
deemed  worthy  of  patient  examination  by  the  greatest  jurist*of 

modern  times.    In  face  of  such  facts  as  these  an  attitude^  of 

A 

half-petulant,  half-supercilious  contempt  such  as  marks  so  much 
of  Austin's  criticism — an  attitude  which  finds  expression  (un- 
conscious expression,  perhaps)  in  references  to  the  "  good " 
Ulpian  and  "  this  legal  oracle  " — is,  we  venture  to  submit, 
entirely  futile  and  barren. 

Ulpian's  Idealism. — When  Austin  complained  of  Ulpian's 
Latin  being  "  too  declamatory  "  for  his  taste  (loc.  cit.,  p.  563), 
he  may  have  been  thinking  of  such  passages  as  the  one  just  dis- 
cussed, and  those  dealing  with  the  nature  of  jurisprudence 
(Dig.  1,  1,  10,  2),  and  the  functions  of  the  jurist  (1,  1,  1,  2).  The 
term  "  declamatory  "  cannot,  however  (as  we  have  endeavoured 
to  show),  be  fitly  applied  to  Ulpian's  style,  so  that  Austin's 
objection  may  have  been  intended  for  the  matter  rather  than  the 
form  of  Ulpian's  statements.  Of  the  passage  on  the  ius  naturale 
nothing  more  need  be  said.  As  to  the  other  two  passages, 
though  they  obviously  have  no  claim  to  scientific  precision,  they 
are  very  far  indeed  from  being  mere  "  declamatory  "  rhetoric. 
They  present,  it  is  true,  a  somewhat  exalted  ideal  of  the  nature 
of  jurisprudence2  and  the  functions  of  the  true  jurist.3  But 

1  Austin  himself  mentions  two — Hooker  and  Montesquieu.     "  A  fustian 
description  of  law  "  is  his  urbane  reference  (loc.  cit.,  p.  211)  to  the  definition 
of  law  in  Hooker's  Ecclesiastical  Polity  (I.,  c.  18).    As  for  Montesquieu — whose 
robust  sanity  has  earned  for  him  the  title  of  "  the  father  of  the  modern 
historical  method  " — it  is  perhaps  enough  to  say  that  it  would  be  difficult 
to  name  a  thinker  loss  prone  to  "  foolish  conceits  "  and  "  inept  speculations." 

2  We  take  Ulpian's  meaning  to  be  somewhat  as  follows :  The  business  of 
the  jurist  is  to  ascertain  the  legal  truth,  either  by  testing  existing  rules  of 
law,  or  by  seeking  to  discover  new  rules.     In  doing  this,  he  must  keep  two 
considerations — corresponding    to    two    aspects   of    law — steadily   in    view. 
In  the  first  place,  he  must  consider  the  requirements  of  justice,  which  is  the 
life-principle  of  law — i.e.,  he  must  apply  an  ideal  standard,  a  standard  which, 
in  its  ultimate  origin,  passes  beyond  the  limits  of  purely  human  things.     This 
is  the  standard  implied  (though  not  always  acknowledged)  in  the  frequent 
appeals  to  a  "  higher  justice,"  "equity,"  "  the  reason  of  mankind,"  and  so 
forth.     In  the  second  place,  he  must  consider  the  requirements  of  utility — 
i.e.,  he  must  apply  a  practical  standard,  for  the  rules  of  positive  law  are 
intended  to  regulate  human  acts  and  human  affairs.    The  greatest  lawyer 
— be  he  judge  or  jurist — is  he  who  combines  a  firm  grasp  of  the  material 
realities  of  life  with  a  clear  vision  of  the  ideal  beyond."     Jurisprudent ia  ost 
divinarum  atque  humanarum  rerum  notitia,  iusti  atque  iniusti  scientia." 

3  "  Cuius  (artis)  merito  quis  noa  sacerdotes  appellet :  iustitiam  namque 
colimus  et  boni  et  aequi  notitiam  profitemur,  sequum  ab  iniquo  separantes, 
licitum  ab  illicito  discernentes,   bonos  non  solum  metu  poenarum,  verum 
etiam  prsemiorum  quoque  exhortatione  efficere  cupientes  ;  veram,  nisi  fallor, 
philosophiam,  non  gimulatam  affectantes."     Ulpian  is  speaking,  of  course, 
of  the  jurists  of  his  own  time.     The  peculiar  bent  of  the  national  genius  of 
the  Romans  tended  to  make  the  jurists  regard  their  science  as  the  "  true 
philosophy."     But  Ulpian's  remarks  are  not  without  value  even  for  us. 


44  ULPIAN 

even  if  they  did  nothing  more  than  that,  the  fault,  if  fault  it  be, 
is  surely  on  the  right  side.  The  law  is  continually  beset  with 
temptations  from  outside  which  tend  to  lower  it  from  the  proud 
dignity  of  a  free  science  to  the  level  of  a  smart  trade.  Our 
thanks  are  due  to  those  who  keep  the  higher  ideal  steadily  before 
our  eyes.  Within  the  sphere  of  jurisprudence,  as  elsewhere, 
there  is  much  to  learn  from  the  man  who,  in  Emerson's  phrase, 
"  hitches  his  waggon  to  a  star." 


BARTOLUS1 

Bartolus  compared  with  Ulpian. — In  some  respects  the  great 
jurist  of  the  Middle  Ages  whose  name  stands  at  the  head  of  this 
article  bears  a  somewhat  close  resemblance  to  Ulpian,  the  most 
famous  jurist  of  the  decadent  Roman  Empire  of  the  West,  from 
which  the  animating  health  and  vigour  of  the  Augustan  age  had 
already  fled2  or  was  fast  fleeing.  Like  Ulpian,  Bartolus  was  not 
distinguished  by  originality  of  thought  or  exposition,  but  he  had 
Ulpian's  faculty  of  clearness  and  perspicacity  of  vision,  to  which 
he  mainly  owed  the  high  reputation  he  acquired  in  the  course  of 
a  comparatively  brief  career,  and  which  his  writings  continued 
to  maintain  for  at  least  two  centuries  after  his  death.  He  could 
also  on  occasion  play  the  part  of  an  adroit  courtier,  as  we  shall 
see  in  connection  with  his  mission  to  the  Emperor  Charles  IV. 

Their  Respective  Periods  contrasted. — It  is  interesting, 
moreover,  to  notice  that  while  Ulpian  flourished  in  a  period 
which  witnessed  the  grant  of  citizenship  to  all  Roman  subjects, 
involving,  as  Gibbon  says,3  the  vain  title  and  real  obligations  of 
Roman  citizens,  thereby  proclaiming  to  the  world  the  univer- 
sality and  unity  of  the  Roman  sovereignty,  and  elevating  the 
Roman  Law  into  a  great  system  of  territorial  jurisprudence 
which  displaced  every  other,  Bartolus  saw  the  light  of  day  under 
very  changed  circumstances.  Unity  had  then  given  place  to 
diversity,  the  Empire  of  the  Csesars  had  long  since  ceased  to 
represent  a  living  political  force  in  the  west  of  Europe,  and  under 

1  The   following    authorities    have    been   mostly   consulted :    Savigny's 
Geschichte  des  Romischen  Rechls  im  Mittdalter,  vol.  vi.,  122-163  ;  La  Grande 
Encyclopedic,  vol.  v.,  p.  524  at  seq. ;  Laine,  Introduction  au  droit  International 
Prive,  tome  L,  115-163  ;  Weiss,  Traite  theorique  et  pratique  de  droit  Inter- 
national Prive,  vol.  i.,  s.  2,  p.  15  et  seq.;  Rivier,  Introduction  Historique  au 
Droit  Romaine,  ss.  214-215,  p.  568  et  seq. ;  Laurent,  Le  droit  civil  International 
chap,  iii.,  p.  273  et  seq.  ;  Fiore,  Diritto  Internazionale  Privato,  vol.  i.,  cap.  iy. 
p.  43  et  seq.  ;  Laghi,  //  diritto  Internazionale  Privato,  vol.  i.,  bk.  i.,  cap.  i., 
p.  39  et  seq.  ;  Holtzendorff's  Encyklopddie  der  Rechtswissenschaft,  i.,  p.  155 
et  seq. 

2  Gibbon,  Decline  and  Fall  of  the  Roman  Empire,  vol.  i.,  chap,  vii.,  p.  194, 
Bury's  edition. 

3  Ibid.,  p.  164. 

45 


46  BARTOLUS 

the  influence  of  barbarian  individualism  man,  and  not  the  citizen, 
had  become  the  true  juridical  being  and  the  subject  of  rights. 
The  invasions  of  the  barbarian  hordes,  under  Attila  the  Hun, 
Alaric  the  Goth,  and  Genseric  the  Vandal,  had  already  broken 
to  a  large  extent  the  spell  of  Roman  universality.  Even  so 
early  as  A.D.  476  the  greater  part  of  the  lands  which  had 
formerly  composed  the  Roman  Empire  of  the  West,  had  been 
divided  into  six  large  Teutonic  kingdoms.  Italy  and  Noricum 
formed  the  kingdom  of  Odoacer ;  North  Africa  constituted  the 
dominion  of  Genseric  or  Gaiseric  the  Vandal ;  from  the  Loire  to 
the  Straits  of  Gibraltar  was  ruled  by  Euric  ;  the  valleys  of  the 
Rhone  and  Saone  belonged  to  Gungobad,  the  Burgundian ;  the 
Prankish  princes  reigned  on  the  Meuse,  Moselle,  and  Lower 
Rhine  ;  and  the  Suevi  carved  out  a  kingdom  which  would  corre- 
spond with  North  Portugal  and  Galicia.  Under  the  influence  of 
this  general  disruption  and  partition  of  the  former  Roman 
Empire,  a  new  order  of  things  now  took  the  place  of  the  older 
S3'stem,  and  henceforth  we  find  that  the  independence  of  the 
individual,  which,  as  Guizot  rightly  says,  is  the  dominant  char- 
acter of  barbarism,  furnishes  also  the  keynote  for  a  right  under- 
standing of  that  march  of  progress  in  the  history  of  the  develop- 
ment of  legal  ideas  which  evolves  gradually  between  the  opposite 
poles  of  juridical  thought,  marked  by  the  principle  of  Roman 
territoriality  on  the  one  hand,  and  by  that  of  personality  of  the 
later  European  jurisprudence  on  the  other.  Each  Hun,  Goth, 
or  Frank  cherished  his  own  free  and  independent  personality, 
and  acknowledged  no  law  but  that  of  the  folk-right  of  his  own 
tribe,  which  he  had  brought  with  him.  Therefore,  just  as  it  is 
in  the  pristine  forests  of  Germany  that  Montesquieu  tells  us 
we  must  seek  to  find  the  roots  of  liberty,  so  it  is  amongst  the 
barbarian  hordes  who  invaded  Italy  that  we  must  look  for  the 
first  germs  of  that  fundamental  notion  which  consecrated  the 
supreme  authority  of  personal  laws,  and  which  was  destined  to 
exercise  so  large  and  dominating  an  influence  upon  the  develop- 
ment of  Private  International  Law  in  Continental  Europe. 

Commerce  of  Free  Burghal  Cities  in  Italy  favours  Notion  of 
Personality.— As  we  advance  towards  the  twelfth  and  thir- 
teenth centuries  the  growth  of  commerce  in  the  free  burghal 
cities  of  Italy  had  no  small  influence  in  confirming  the  notion 
that  a  man  carried  his  personality  with  him,  and  did  not  lose  it 
by  more  temporary  residence  for  the  purposes  of  trade  or  the  like 


BAETOLUS  47 

in  a  city  other  than  that  in  which  he  was  born.  Nay,  even  in  the 
same  city  it  was  no  uncommon  experience  to  find  conflicting 
laws  prevailing  in  different  quarters  of  it,  much  in  the  same  way 
as  local  customs  in  India  regulating  the  right  of  pre-emption  are 
found  to  vary  at  the  present  day  in  different  muhallcts  or  sub- 
divisions of  the  same  city. 

Study  of  Roman  Law. — But  although  the  Middle  Ages  as  a 
period  were  distinguished  by  the  growth  of  a  vast  body  of  per- 
sonal laws,  the  study  of  the  Roman  Law  had  never  actually 
ceased  to  attract  the  attention  of  the  best  intellects  of  each  suc- 
ceeding century.  It  may  be,  and  is  no  doubt  true,  that  Rome, 
which  was  the  proper  seat  of  legal  education  in  Ulpian's  time, 
ceased  to  be  so  some  time  (probably  four  centuries)  after  the 
reign  of  Justinian,  who,  himself,  on  his  conquest  of  Italy,  had 
confirmed  the  Roman  School  of  Law  in  its  privileges,  and  con- 
tributed to  its  upkeep  by  supplying  funds  for  the  payment  of  its 
teachers.  But  with  the  dismemberment  of  the  Western  Empire 
law-schools  as  public  endowments  were  no  longer  maintained. 
The  Roman  Law  was,  nevertheless,  taught  in  the  ordinary 
secular  schools  as  a  branch  of  old  literature,  and  an  instance  of 
this  at  Toul  is  quoted  by  Savigny  from  a  contemporary  account 
of  Pope  Leo  IX.,  who  died  in  A.D.  1054.  About  the  same  time 
we  have  undeniable  traces  of  a  school  of  law  at  Ravenna,  and, 
according  to  Odofredus,  who  wrote  in  the  thirteenth  century, 
this  was  the  same  school  which  had  formerly  existed  at  Rome. 

In  Bartolus's  time  we  know  that  law  was  taught  in  Italy,  at 
Pisa,  Perugia,  Padua,  and  Bologna  ;  so  that  while  a  new  world 
of  legal  ideas  had  been  called  into  existence,  it  was  more  by  way 
of  supplement  (in  subsidium)  than  in  substitution  of  that  system 
which  the  genius  of  Rome  had  established  for  the  perpetual 
instruction  and  guidance  of  civilized  humanity.  And  this  ten- 
dency was  materially  strengthened  by  the  attitude  of  the  Roman 
Catholic  Church.  By  its  very  constitution  the  Church  of  Rome 
stood  forth  as  the  embodiment  of  unity  and  universality ;  and 
while  the  priesthood  represented  the  people  in  the  abstract,  the 
papacy  was  the  symbol  of  the  State  and  sovereignty.  Accord- 
ingly, from  the  seventh  century  onwards,  the  principle  Ecdesia 
vivit  lege  romana  was  one  which  was  constantly  recognized  by 
ecclesiastical  writers. 

The  School  of  Glossators. — But  it  is  from  the  end  of  the 
eleventh  century  that  a  systematic  study  of  the  Roman  Law 


48  BARTOLUS 

can  be  said  to  have  been  revived.  This  was  the  work  of  the 
Jurist  Irnerius,  who  was  the  founder  of  the  School  of  Glossators 
which  flourished  down  to  the  middle  of  the  thirteenth  century, 
but  of  whose  personal  history  we  know  very  little,  except  that 
he  died  about  A.D.  1188,  and,  according  to  Odofredus,  studuit 
per  se,  sicut  potuit.  It  was  this  school  which  was  the  precursor 
of  that  of  Bartolus,  and  which  derived  its  name  from  the  fact 
that  its  teaching  consisted  in  brief  glosses  on  the  text  of  the 
original  Roman  law-books.  Its  chief  ornament  was  Accursius 
(1182-1260),  whose  masterly  glossa  ordinaria  fittingly  closed  this 
era.  This  work  obtained  such  general  repute  that  it  practically 
superseded  the  original  sources  of  the  law,  to  such  an  extent, 
indeed,  that  it  became  a  recognized  rule  quod  non  agnoscit  glossa, 
non  agnoscit  curia. 

Followed  by  that  of  the  Commentators  and  Post- Glossators. 

This  era  was  followed  by  that  of  the  Commentators  and  Post- 

Glossators,  who  abandoned  the  form  of  glosses  upon  texts,  and 
adopted  instead  the  more  comprehensive  and  more  scientific 
method  of  dealing  separately  with  particular  branches  of  law, 
and  grouping  together  all  the  principles  governing  the  same. 
These  rules  were,  perhaps,  not  always  very  clearly  expressed 
nor  arranged   in   the  most  convenient  order,  while  the  Latin 
which  the  commentators  employed  was  described,  but  perhaps 
by  too  captious  a  critic — Rabelais — as  that  of  the  cuisinier  et 
marmiteux,  non  de  Jurisconsulte.    Among  the  earliest  jurists  of 
this  school  were  Oldradus  (1335),  who  was  a  professor  of  law  at 
Padua,  Siena,  Montpellier,  Perugia,  and  Bologna,  and  among 
his  disciples  were  Bartolus  and  Alberic  ;  Pierre  de  Belleperche 
or  Petrus  de  Bellapertica,  who  died  in  1308 ;  Joannes  Andreae 
(Jean  d'Andre),  the  most  celebrated  authority  on  procedure  in 
the  Middle  Ages,  who  died  in  1348  ;  and  Cinus,  the  pupil  of  Dinus, 
a  Florentine  and  former  professor  at  Bologna,  who  died  in  1303, 
the  friend  of  Dante  and  the  master  of  Bartolus  and  Petrarch, 
a  poet  himself  (whose  sonnet  in  memory  of  Selvaggia  and  the 
canzone  to  Dante  are  fine  examples  of  his  style  at  best)  as  well 
as  a  jurist  of  considerable  eminence,  who  inter  alia  is  distinguished 
for  having  maintained,  contrary  to  the  then  prevailing  opinion 
in  favour  of  the  lex  rei  sitce,  that  the  form  of  a  testament  was  to 
be  regulated  by  the  lex  loci  actus. 

Bartolus :  Personal  History. — It  was  in  this  era  in  the  history 
of  jurisprudence,  and  in  the  midst  of  such  surroundings,  that  we 


BABTOLUS  49 

reach  the  name  of  Bartolus.     Of  his  birth  and  early  years  we 
have  little  reliable  knowledge.     He  was  a  native  of  Sassoferrato, 
a  town  in  the  province  of  Ancona,  on  the  River  Sentino,  which 
was  also  the  birthplace  of  Perroti  (died  1480),  a  leading  scholar 
of  the  fifteenth  century,  who  was  celebrated  for  his  commentaries 
on  Statius  and  Martial,  and  who  also  translated  five  books  of 
Polybius  into  Latin.    The  year  of  Bartolus's  birth  is  variously 
stated  between   1309-14,   but    as    he  tells    us    himself    (Dig. 
Novum.  L.  quidam  cum  fUium  132,  de  V.O.)  that  he  was  promoted 
to  the  degree  of  Doctor  of  Laws  at  the  age  of  twenty-one,  and  as 
this  event  occurred  on  November  10th,   1334,  we  may  safely 
accept  the  suggestion  of  Savigny,1  that  Bartolus  must  have  been 
born  between  November  10th,  1313,  and  November  10th,  1314. 
His  father's  name  is  given  in  his  doctor's  diploma  (a  copy  of 
which  is  given  by  Lancellotus)  as  Franciscus,  son  of  Bonaccursius, 
and  his  mother's  name,  we  are  told  by  his  biographer  Lancellotus, 
who  published  his  Life  in  1576,  was  Sancta,  which  seems  to 
effectually  dispose  of  the  story  that  he  was  a  foundling.     He  had 
two  brothers,  Bonaccursius  (called  after  his  grandfather)  and 
Peter.     His  first  tutor  was  the  grammarian  Peter  of  Assisi,  a  man 
of  whom  he  speaks  with  earnest  gratitude,  as  learned  without 
hypocrisy,  and  of  wonderful  piety.     At  the  age  of  fourteen  he 
began  the  study  of  law  at  Perugia,  and  his  principal  tutor  was 
the  Cinus  already  mentioned,  whose  lectures,  he  told  Baldus,  had 
exercised  most  influence  upon  his  legal  training.     He  subse- 
quently removed  to  Bologna,  and  there  he  studied  under  four 
distinguished    jurists,    Buttigarius,    Rainerius,    Oldradus,    and 
Belvisio.     He  seems  also  to  have  applied  himself  to  the  study  of 
geometry  under  Guido  of  Perugia,  a  magnus  Theologies,  as  Bartolus 
calls  him,  and  of  the  Hebrew  language.     He  held  the  office  of 
judicial  assessor  at  Todi  and  Pisa,  and  it  is  said  by  Diplovataccius 
that  he  was  banished  for  four  years  for  an  unjust  sentence  of 
death  he  had  passed  while  exercising  one  of  these  offices.     But 
the  story  is  disbelieved  by  Savigny,2  and  there  is  no  contemporary 
proof  in  support  of  it.     In  the  autumn  of  1339  we  find  him 
appointed  as  a  colleague  of  his  former  master  Rainerius  at  Pisa 
on  a  salary  of  one  hundred  and  fifty  florins,  at  which  time  he 
tells  us  he  was  twenty-six  years  of  age,  and  the  house  in  which 
he  lived  in  Pisa  was  still  preserved  in  Savigny's  time  with  an 

1  Oeschichte  des  romischen  Rechts  im  Mittdalter,  bd.  vi.,  p.  125,  n.  5. 

2  Vol.  vi.,  p>129. 

5 


50  BABTOLUS 

inscription  upon  it  commemorating  the  fact.  In  1343  he  re- 
moved to  Perugia,  where  he  soon  established  a  widespread  repu- 
tation as  a  law  teacher,  and  pupils  from  ah1  parts  of  Italy  flocked 
to  his  lectures,  two  of  the  most  famous  being  Baldus  and  his 
brother  Angelus.  Five  years  afterwards  Perugia,  hi  grateful 
remembrance  of  his  eminent  services,  conferred  upon  him  and 
his  brother  Bonaccursius  the  right  of  citizenship,  and  in  1355 
this  city  had  still  greater  cause  to  revere  his  memory,  for,  being 
sent  on  a  mission  to  the  Emperor  Charles  IV.,  who  was  then  at 
Pisa,  Bartolus  obtained  for  it  many  privileges  as  well  as  a  con- 
firmatory charter  for  its  University.  Nor  did  he  return  without 
personal  honours  for  himself,  for  the  Emperor  ennobled  him, 
and  appointed  him  a  councillor,  besides  conferring  upon  him 
other  marks  of  imperial  favour.  Among  these  was  the  singular 
privilege  that  he  and  all  his  descendants  who  should  be  pro- 
fessors of  law  should  have  the  power  of  legitimizing  their  pupils 
in  cases  of  bastardy,  or  of  relieving  them  from  the  disadvantages 
of  minority.  Bartolus  was  twice  married  :  his  first  wife  was  a 
native  of  Ancona,  but  beyond  this  fact  and  that  the  union  did 
not  last  long,  we  know  little  else  about  her  ;  his  second  wife  was 
Pellina  di  Bovarello  of  Perugia,  of  the  Alfani  family,  who  sur- 
vived him,  and  by  whom  he  had  a  family  of  two  sons  and  four 
daughters.  He  died  at  Perugia  in  July,  1357,  at  the  age  of 
forty-four,  and  was  buried  in  the  Church  of  St.  Francesco,  where 
a  monument  was  erected  to  his  memory  with  the  inscription 
so  eloquent  in  its  brevity,  Ossa  Bartoli.  By  his  will,  executed 
on  May  14th,  1356,  Bartolus  designated  his  two  sons  as  his 
principal  heirs,  but  he  gave  each  of  his  daughters  a  legacy  of  four 
hundred  and  fifty  florins,  and  he  also  made  a  suitable  provision 
for  hiswife.  He  bequeathed  his  modest  library,  which  consisted  of 
thirty  juristical  and  thirty-four  theological  volumes,  indicating 
in  which  direction  his  tastes  lay,  to  a  monastery  in  Perugia,  from 
whence  it  is  said  a  monk  stole  the  volumes  and  carried  them  to 
Naples.  He  belonged  to  the  moderate  clerical  party  more  by 
reason  that  he  lived,  as  he  says,  in  terris  amicis  ecdesice  than  from 
strong  conviction,  and  as  a  rule  he  avoided  mixing  himself  up  in 
the  politics  of  the  day  arising  out  of  the  Guelf  and  Ghibelline  feud. 
His  Great  Authority. — Such  are  the  few  particulars  of  his 
private  life  which  have  come  down  to  us  ;  and  considering  that 
his  public  career  was  confined  within  the  brief  period  of  eighteen 
or  twenty  years,  it  is  astonishing  what  a  reputation  he  succeeded 


BARTOLUS  51 

in  building  up  for  himself  at  an  age  when  most  men  are  only 
beginning  to  lay  the  foundations  of  their  future  fame.  No  jurist 
of  the  Middle  Ages  ever  acquired  such  a  reputation  as  was 
universally  conceded  to  him.  His  authority  as  an  expounder 
of  the  Roman  Law  was  unquestioned  in  his  lifetime,  and  revered 
for  centuries  after  his  death.  He  was  called  lucerna  or  pater 
juris1  and  dux  jurisconsultorum,  and  he  exercised  for  a  long  time 
in  Italy,  Spain,  and  Portugal  the  authority  of  a  legislator.  At 
Padua  a  Chair  was  even  created  for  the  exposition  of  the  opinions 
of  Bartolus.  If  his  reputation  was  subsequently  overshadowed 
in  France  and  Italy  by  the  historical  school  represented  by  Cujas, 
Alciati  (6.  1492,  d.  1550  A.D.),  and  others,  it  continued  more  or  less 
unimpaired  in  Germany  from  the  "  reception  "  of  the  Roman 
Law  as  the  "  Common  Law  "  in  the  fifteenth  century  down  to 
modern  times  ;  and  even  at  this  date  we  must  admit  that  there 
were  solid  grounds  for  the  pre-eminent  respect  that  was  originally 
accorded  to  him.  He  was  above  all  things  a  practical  lawyer, 
and  his  strong  practical  common  sense  convinced  him  of  the 
necessity  of  evolving  from  the  chaos  of  conflicting  Statutes, 
customs,  and  feudal  laws  which  prevailed  in  his  day  some  prin- 
ciples of  general  application  which  were  suitable  to  the  age  in 
which  he  lived.  This  was  the  great  aim  of  his  life,  unhappily 
cut  short  by  an  untimely  death  while  he  was  still  in  the  vigour  of 
manhood.  He  wished  to  draw  from  the  Roman  Law,  the  Canon 
Law,  the  Feudal  Law,  and  Customary  Law,  a  sort  of  Common 
Law  which  would  avoid  the  technicalities  of  the  one,  the  narrow- 
ness of  another,  the  harshness  of  a  third,  and  the  defects  and 
deficiencies  of  a  fourth  ;  and  if  he  had  been  spared  to  run  the 
average  age  allotted  to  man,  he  would  probably  have  left  behind 
him  more  imperishable  work  as  the  fruit  of  his  labours.  But, 
as  we  shall  see  presently,  there  are  still  to  be  found  in  his  works 
the  materials  for  the  construction  of  many  of  the  leading  doctrines 
of  Private  International  Law. 

His  Distinctive  Teaching. — In  their  original  shape  his  writings 
for  the  most  part  took  the  form  of  lectures,  which  were  delivered 
by  him  as  part  of  his  University  courses  ;  but  these  were  subse- 
quently amplified  from  notes  and  manuscript  comments,  and 
published  in  the  collected  edition  of  his  works,  which  first  ap- 
peared in  Venice  in  1475  in  five  volumes,  and  finally  in  eleven 
volumes  in  1615.  This  circumstance,  no  doubt,  accounts  for  the 

1  Laurent,  Le  Droit  Civil  International,  i.,  p.  299. 


52  BABTOLUS 

fact  that  in  their  published  form  his  writings  do  not  reveal  that 
strong  personality  of  the  man  which  was  so  impressed  upon  his 
students  in  the  lecture-room.  Many  of  his  critics,  therefore, 
have  been  unable  to  account  for  the  superior  reputation  he 
enjoyed  over  his  predecessors  and  contemporaries,  and  have 
attempted  to  account  for  it  in  various  ways.  But  the  truth  is 
that  his  exegetical  teaching  of  the  law  was  carried  out  in  a  new 
spirit,  with  a  freshness  and  energy,  combined  with  a  judicial 
calmness  and  soberness  of  judgment,  which  were  wanting  in 
others.  So,  again,  if  he  employed  the  dialectical  method  which 
was  so  much  in  vogue  in  the  previous  century,  and  to  an  extent 
which  rendered  the  works  of  his  predecessors  tiresome  and  un- 
profitable to  read,  he  never  abused  it. 

To  us,  however,  he  is  chiefly  interesting  for  the  influence  he 
exercised  in  developing  the  theory  of  Statutes,  which  can  only 
be  compared  with  that  of  d'Argentre  at  a  much  later  period. 
That  he  was  not  the  originator  of  this  celebrated  theory,  as  was 
once  claimed  for  him,  is  now  well  established,  for  it  is  certain 
that  both  his  own  masters,  Cinus  and  Oldrodus  (to  mention 
no  others),  directed  their  attention  to  the  subject  of  the  conflict 
of  laws,  and  proposed  certain  rules  for  its  solution.  But  if 
Bartolus  cannot  claim  to  have  originated  the  above  theory,  it  is 
certainly  equally  undeniable  that  he  gave  such  an  extended 
application  to  it,  and  so  amplified  the  work  of  his  predecessors 
that,  while  their  names  have  more  or  less  ceased  to  be  connected 
with  it,  his  own  has  been  imperishably  associated  with  its  history. 
As  Weiss  says,  if  he  was  not  the  creator  of  this  theory,  he  was  at 
least  one  of  its  ancestors.1  If,  however,  he  has  received  in  this 
connection  more  credit  for  originality  than  he  deserved,  he  has, 
on  the  other  hand,  suffered  from  a  want  of  true  appreciation 
of  his  actual  teaching.  It  has  been  said,  for  instance,  that  the 
fundamental  notion  underlying  his  theory  was  the  general 
division  of  all  laws  into  real  and  personal  Statutes.  But  such  a 
dual  division  is  completely  foreign  to  the  whole  school  of  Italian 
writers  of  the  period  and  equally  to  his  own,2  and  is  really 
characteristic  since  the  sixteenth  century  of  the  French  school 
under  the  teaching  of  d'Argentre,  who  was  responsible  for 

1  Traite  theorique  el  pratique  de  droit  International  Prive,  i.,  p.  16,  Paris, 
1898. 

-  The  modern  Italian  school  regards  all  rules  of  law  as  being  in  principle 
Statutes,  and  holds  that  in  territorial  and  international  operation 


they  have  no  other  limit  than  the  so-callod  laws  of  public  order.—  Von  Bar. 
*  18  (r)  ;  Laurent,  i.,  p.  307. 


BARTOLUS  53 

it.1  It  is  true  that  Bartolus  incidentally  affirms  that  a  disposition 
of  the  law  is  to  be  regarded  as  real  or  personal,  according  as  its 
terms  may  relate  to  things  or  persons.  But  that  is  only  in  the 
nature  of  a  passing  observation  by  way  of  illustration,  and  by 
no  means  embodies  what  may  be  termed  the  kernel  of  his  own 
teaching,  as  many  writers  have  affected  to  believe. 

In  substance  the  doctrine  of  Statutes,  as  taught  by  the  Post- 
Glossators,  may  be  summarized  hi  this  way  :  (1)  The  Roman  Law 
is  universal,  and  therefore  common  to  strangers  also  ;  (2)  the 
Statutory  Law,  as  an  exception  to  the  former,  is  restricted  to 
those  persons  and  things  which  are  subject  to  the  sovereignty 
which  enacted  it.  From  these  leading  principles  the  folio  whig 
consequences  resulted  :  (a)  that  a  Statute  which  affected  persons 
only  did  not  operate  against  strangers  (Statuta  in  non  subditos 
jurisdictioni  statuentem  disponere  non  possunt) ;  (b)  that  a  Statute 
which  referred  to  things  operated  against  strangers  as  well  as 
natives,  because  things  were  supposed  to  be  under  the  power 
of  the  legislating  authority  (Statuta  quce  afficiunt  res  ligant 
forenses) ;  and  (c)  that  a  Statute  which  affected  the  person 
follows  the  citizen  wherever  he  goes  (Civis  ligatur  etiam  extra 
territorium  statuto  patrice).2  As  illustrating  the  application  of 
these  general  principles,  Bartolus  taught  that  a  Statute  which 
either  permitted  a  son  of  the  family  (ftlius  familias)  to  execute 
a  testament,  or  prohibited  a  husband  from  instituting  his  wife 
as  his  heir,  did  not  affect  strangers  who  were  mere  residents 
of  the  city  where  such  a  law  prevailed.  Conversely,  a  Statute 
which  prohibited  a  husband  from  alienating  his  wife's  estate 
without  her  consent  is  one  that  has  an  extra-territorial  effect, 
and  the  like  rule  prevails,  speaking  generally,  in  dealing  with 
other  Statutes  affecting  the  incapacity  of  a  person.  But  Bartolus 
not  ^infrequently  found  himself  confronted  with  complex  cases 
(as  in  the  matter  of  succession)  which  compelled  him  to  devise 
special  regulations  and  even  to  resort  to  ingenious  constructions 
of  a  text  to  get  over  difficulties .  It  is  here  that  the  heel  of  Achilles 
is  apparent  in  his  armoury,  and  his  vulnerable  points  were  eagerly 
laid  hold  of  by  his  later  critics  to  subject  him  to  merciless  ridicule. 
Thus  d'Argentre  says,  ridere  vulgo  solent  cum  dicitur  Jus  ATRUM 
aut  ATRUM  Jus  diversa  dicere  volenti. 

Dumoulin  (1500-66)  is  equally  severe   upon  him  for  deciding 

1  Laine,  Introduction  au  droit  International  Prive,  i.,  p.  132,  Paris,  1888. 

2  Laghi,  II  dirilto  Internazionale  Private,  i.,  p.  50,  s.  46. 


54  BABTOLUS 

the  controversy  as  to  whether  a  Statute  which  provided  that  the 
eldest  son  should  succeed  to  his  father's  whole  estate  applied  to 
natives  extra-territorially  or  was  confined  to  persons  within  its 
own  territory,  by  inquiring  whether  the  law  said  primogenitus 
succedat  in  omnibus  bonis  or  bona  decedentium  veniant  in  primo- 
genitum :  in  the  former  case,  according  to  Bartolus,  the  Statute 
was  to  be  held  to  be  one  that  dealt  with  persons ;  in  the  latter, 
one  that  dealt  with  things.  Very  naturally  his  critic  says  : 
Tamen  rejicitur  hcec  distinctio  quce  verbalis  est  el  communiter 
reprobatur.  But  advocates  of  this  distinction,  puerile  as  it  now 
seems  to  us,  were  nevertheless  to  be  found  as  late  as  the  eighteenth 
century,  and  it  must  not  be  forgotten  that  a  very  eminent  French 
writer  saw  a  distinction  between  Jus  vert  and  vert  Jus.1  Bar- 
tolus was,  in  fact,  trying  to  discover  some  way  of  distinguishing 
between  Statutes  which  fell  under  one  or  the  other  of  the  above 
categories,  and  he  begins  the  passage  already  quoted  by  saying  : 
Mihi  videtur,  quod  verba  statuti  seu  consuetudinis  sunt  diligenter 
intuenda,  an  observation  to  which  no  possible  objection  could 
be  taken.  He  then  proceeds  to  say  :  Aut  ilia  disponunt  circa  res, 
as,  for  instance,  by  the  words,  Bona  decedentis,  or  that  the  verba 
statuti  seu  consuetudinis  disponunt  circa  personas ;  and  by  way 
of  illustration  he  adds  :  ut  per  hcec  verba  :  Primogenitus  succedat. 
It  is  clear,  therefore,  that  the  main  object  of  Bartolus  was  to 
lay  down  the  rule  that  the  actual  words  of  a  Statute  or  custom 
must  furnish  the  true  key  to  its  purport  and  intent,  which  is  a 
rule  well  recognized  at  the  present  day.  His  particular  illustra- 
tion of  that  rule  may  have  been  well  or  ill  chosen,  but  that  is 
quite  a  secondary  matter,  and  does  not  affect  the  soundness  of 
the  rule  itself.  Nor  have  his  critics,  d'Argentre  and  others, 
been  any  more  successful  in  their  own  definitions,  and  they  in 
turn  have  been  criticized  by  later  jurists.  Besides,  it  must  be 
remembered,  in  justice  to  Bartolus,  that  in  the  age  in  which  he 
lived  it  was  usual  in  the  solution  of  every  question  to  base  one's 
opinions  upon  some  definite  text  of  the  Roman  Law,  and  as 
he  had  to  deal  with  new  conditions  and  necessities  unknown  to 
the  Roman  jurists,  it  is  not  surprising  that  his  interpretations 
were  occasionally  of  a  forced  and  arbitrary  character.  As 
Contuzzi  aptly  says  :  II  pensiero  era  dei  Glossatori,  la  formola 
era  del  Diritto  Romano-  When  due  allowance  is  made  for  this 

1  Laurent,  vol.  i.,  p.  299. 

2  Diritto  Internazionale  Privalo,  Milan,  1890,  p.  42. 


BARTOLUS  #5 

circumstance,  we  need  not  dwell  too  much  upon  the  more  or  less 
pardonable  defects  which  are  alleged  against  him.  It  is  more 
generous  to  recognize  that  in  him  we  have  a  jurist  who,  so  early 
as  the  first  half  of  the  fourteenth  century,  was  capable  of  laying 
down  the  principle,  which  has  served  as  the  foundation  of  all 
modern  juristic  science  (e  forma  e  sempre  formera  la  base  di  ogni 
futuro  sistema,  as  Fusinato  says),  that  there  are  certain  laws 
which  have  an  extra-territorial  effect,  and  others  which  have 
not  ;x  and,  in  further  illustrating  this  broad  principle  by  estab- 
lishing the  following  important  rules  :  (1)  that  juridical  Acts, 
such  as  contracts  and  testaments,  are  valid  as  to  form  if  they 
comply  with  the  extrinsic  requirements  of  the  law  of  the  place 
where  they  are  made  (ubi  est  celebratus  contractus) ;  (2)  that  the 
natural  and  presumably  intended  consequences  of  a  convention 
are  to  be  judged  according  to  the  law  of  the  place  of  contract 
(locus  contractus) ;  (3)  that  accidental  consequences  which  arise 
ex  post  facto  by  reason  of  neglect  or  delay  (propter  negligentiam 
vel  moram)  are,  on  the  contrary,  to  be  judged  by  the  law  of  the 
place  of  performance  (in  illo  loco,  in  quern  est  collata  solutio),  or, 
if  no  such  place  is  fixed,  or  an  alternative  of  many  places  is 
provided  involving  an  election,  then  in  that  place  ubi  petitur ; 
and  (4)  that  rules  of  procedure  and  everything  relating  ad  litis 
ordinationem  are  to  be  regulated  by  the  lex  fori — that  is  to  say, 
the  law  of  the  locus  judicii.  The  legists  of  later  centuries  have 
done  little  more  than  to  elaborate  these  rules  by  a  further  process 
of  development,  and  posterity,  as  Laurent2  rightly  contends 
ought  to  be  more  indulgent  and  just  to  the  memory  of  a  man 
who,  after  all,  has  the  glory  of  being  a  pioneer  of  the  juristic 
science  of  to-day.  It  is  easy  to  criticize  the  defects  and  errors 
of  our  predecessors,  but  if  men  like  Bartolus  had  not  paved  the 
way  for  later  writers,  no  science  would  ever  be  perfected. 

His  Principal  Works. — Bartolus  has  left  behind  him  a  con- 
siderable literature  on  a  variety  of  legal  subjects.  But  amongst 
his  principal  works  may  be  mentioned  the  following  : 

1.  Commentarius  in  trio,  Digesta,  first  published  in  Venice  in 
A.D.  1470. 

2.  Commentarius  in  libros  IX.  Codices  priores,  1478. 

3.  Commentarius  Super  libris  III.  posterioribus  Codicis,  pub- 

1  Cf.  Fiore,  Diritto  Internazionale  Private,  3rd  ed.,  vol.  i.,  p.  48,  Torino, 
1888  ;  Guido  Fusinato,  II  principio  della  Senola  Italiana,  p.  23,  Bologna, 
1885. 

2  Vol.  i.,  p.  301. 


56  BARTOLUS 

lished  in  Naples  in  1470.  In  the  preface  to  this  work  he  tells 
us  that  he  undertook  it  after  a  severe  illness  which  prevented 
him  from  pursuing  his  ordinary  avocations,  in  order  to  occupy 
his  mind  with  a  useful  study 

4.  Lectura  Super  Authenticis  (1477),  which  is  an  attempt  to 
compile  an  additional  (eleventh)  book  of  novels  from  the  ordi- 
nances of  the  Emperor  Henry  VII.  from  the  year  1312. 

5.  Processes  Satance  contra  Divam   Virginem  Coram  Judice 
Jesu,  a  mock  trial  between  the  Devil  and  the  Virgin  Mother 
of  our  Lord,  in  which  the  former  claims  the  human  race  as  his 
property,  invoking  his  long  possession  in  support  of  his  claim, 
to  which  the  Virgin  replies  that  his  possession  has  been  mala 
fide,  and  therefore  of  no  avail.    It  is  needless  to  add  that  the 
claim  is  eventually  defeated.    The  treatise  is  intended  as  a 
practical  lesson  on  judicial  procedure,  and  has  been  frequently 
printed  and  translated  from  the  Latin  into  other  languages. 
It  has  also  suggested  many  similar  works  by  other  writers,  such 
as  the  Liber  Belial,  s.  processus  Luciferi  contra  Christum.  Savigny 
calls  it  a  pedantic  and  extravagant  jest,1  but  Bartolus  certainly 
did  not  mean  it  to  be  accepted  otherwise  than  as  a  serious  contri- 
bution to  the  practical  study  of  the  rules  of  procedure. 

Their  Value  at  the  Present  Day. — Except  as  a  connecting- 
link  between  the  older  system  of  law  prevailing  in  the  period 
preceding  the  break-up  of  the  Koman  Empire  of  the  West  and 
that  of  the  system  adopted  by  the  modern  nations  of  Europe, 
the  works  of  Bartolus  offer  little  attraction  to  the  ordinary 
student  of  the  present  day.  They  are  now  scarcely  consulted, 
and  lie  neglected — at  least  in  this  country — on  the  shelves  of 
public  libraries.  Nor  is  it  likely  that  they  will  ever  again  regain 
much  attention.  But  to  those  who  are  interested  in  discovering 
how  the  jurisprudence  of  modern  times  has  arisen,  by  mere 
development  and  progressive  change,  from  earlier  systems,  the 
influence  which  Bartolus  exercised  in  the  latter  part  of  the  Middle 
Ages  is  full  of  abiding  interest.  This  period  of  history  is  par- 
ticularly distinguished  by  examples  of  awakened  energy  and 
restless  enterprise,  and  it  is  only  by  a  knowledge  of  the  part  it 
played  in  the  development  of  scientific  law  that  we  can  hope  to 
be  able  to  appreciate  the  march  of  progress  in  subsequent  cen- 
turies, or  to  understand  the  striking  divergence  of  legal  thought 
in  different  parts  of  Western  Europe  which  even  now  distinguishes 

1  vi.  160. 


BARTOLUS  57 

the  Italian,  French,  and  German  schools  of  jurisprudence. 
English  law,  of  course,  stands  apart  from  the  laws  of  the  rest 
of  the  European  nations  in  its  relation  to  Roman  Law,  for  here 
that  law  never  acquired  the  same  degree  of  influence  which  it 
naturally  obtained  on  the  continent  of  Europe.  Insular  isolation 
has  here  served  to  mould  our  laws,  our  constitution,  and  our 
customs  according  to  ideals  suitable  to  the  peculiar  conditions 
under  which  we  live.  But  even  here  expansion  of  trade  and 
increasing  intercourse  with  foreign  nations  have  brought  us 
face  to  face  with  the  intricate  problems  arising  out  of  a  conflict 
of  laws  with  which  foreign  jurists  of  the  thirteenth  and  later 
centuries  had  to  deal.  No  one  who  is  interested  in  the  solution 
of  these  problems,  which  are  constantly  becoming  more  and 
more  complex  in  character,  can  be  indifferent  to,  or  fail  to  derive 
advantage  from,  a  study  of  the  principal  works  of  those  earlier 
thinkers  in  this  department  of  jurisprudence  ;  and  it  is  from  this 
point  of  view  that  Bartolus  still  deserves  attention  in  this  country. 
There  was  a  time  when  it  was  usual  to  brand  the  Middle  Ages  as 
a  dark  and  barbarous  period  distinguished  only  by  Faustrecht 
or  Kolhemecht.  But  an  age  that  could  produce  a  Dante  and  a 
Petrarch  can  never  be  said  to  be  unifluminated  by  genius,  and 
among  the  jurists  of  the  same  age  Bartolus  can  never  be  denied 
a  pre-eminent  position.  It  has  been  said  that  there  is  even  a 
poetry  in  law  ;  but,  as  Von  Ihering  has  eloquently  observed, 
die  wahre  Poesie  des  Rechts  liegt  in  der  Erhabenheit  seines  Prob- 
lems und  in  seiner  an  Majestdt  und  Gesetzmdssigkeit  dem  Laufe 
der  Gestirne  vergleichbaren  Bewegung.1  And  a  man  like  Bartolus, 
who  took  a  leading  part  in  this  evolutionary  movement,  and 
initiated  some  of  those  lofty  problems,  deserves  a  niche  in  any 
gallery  of  great  jurists  of  the  world. 

1  Oeist  des  r'omischen  Rechts,  i.  62. 


ANDREA  ALCIATI  AND  HIS  PREDECESSORS 

LAW  may  be  investigated  from  various  points  of  view — its 
historical  evolution  and  its  organic  relation  to  its  age,  the  syn- 
thesis of  its  dogmatic  content,  or  the  philosophical  significance 
of  its  fundamental  principles.  Of  the  second  and  third  categories 
there  are  several  notable  representatives  in  the  present  series 
of  Great  Jurists ;  the  great  importance  and  fruitfulness  of  the 
comparative  and  historic  method  will  be  exemplified  in  this  and 
the  following  essays  devoted  to  two  jurists  who  were  pre-eminent 
pioneers  in  the  application  of  that  method  to  the  study  of  Roman- 
istic  jurisprudence.  Alciati,  kindled  by  the  humanist  movement 
in  Italy,  was  the  veritable  inaugurator  ;  then  followed  Cujas,  his 
great  disciple,  who  elaborated  and  perfected  this  method,  and 
indeed  surpassed  his  predecessor  in  many  respects.  To  them  is 
largely  due  the  subsequent  rational  study  of  Roman  law,  the  more 
accurate  restoration  and  interpretation  of  its  numerous  texts, 
its  scientific  development  generally,  and  its  influence  on  national 
legislations.1 

Roman  Law  before  Alciati — In  the  East. — During  the  half- 
century  following  Justinian,  in  the  Eastern  Empire,  there  ap- 
peared, with  his  sanction,  numerous  Greek  translations  and 
epitomes  of  his  legal  compilations,  and  also — though  prohibited 
by  him — commentaries  and  interpretations.  The  century  after 
was  a  period  of  stagnation  and  neglect ;  the  public  law  school 
of  Constantinople  was  closed  in  717.  Then  came,  between  740 
and  911,  a  brief  succession  of  Graeco-Roman  codes  or  manuals 
issued  by  the  authority  of  the  Byzantine  Emperors.  Thus  we  find 
the  Edoga  Legum  (740),  the  Prochiron  (c.  878),  the  Epanagoge 
Legis  (884-6),  and,  most  important  of  all,  the  Basilica  (or  Basilicae] 
(906-11).  Ostensibly  these  works  were  based  on  the  Justinian 

1  As  the  subjects  of  this  essay  and  the  following  partly  overlap,  and  the 
periods  to  some  extent  synchronize,  the  two  studies  are  presented  with  the 
hope  that  they  will  be  taken  as  supplementing  each  other  ;  otherwise  it  would 
have  been  impossible  to  avoid  a  considerable  amount  of  repetition. 

58 


ANDREA    ALCIATI 


ANDEEA   ALCIATI  AND   HIS   PREDECESSORS  59 

codes ;  in  reality  they  were  drawn  from  translations,  epitomes, 
and  commentaries  which  ultimately  superseded  the  original 
texts.  Thus  by  the  end  of  the  eleventh  century  the  great  Roman 
jurisprudence  fell  into  abeyance  owing  to  the  prevalence  and 
usurped  authority  of  these  compilations,  the  substitution  of  the 
Greek  language  for  the  Latin,  and  the  ever-growing  influence  of 
the  canon  law. 

In  the  West.1 — In  order  to  appreciate  duly  the  position  and 
reformative  influence  of  Alciati  and  the  other  humanists,  it  is 
essential  to  bear  in  mind  the  fortunes  of  Roman  law  in  the  West 
from  the  time  of  Justinian  to  the  sixteenth  century.  This  long 
period  may  be  subdivided  into  more  or  less  defined  stages  : 
Roman  law  to  the  middle  of  the  eleventh  century ;  revival  in 
the  second  half  of  the  eleventh  century  mainly  connected  with 
Irnerius  at  Bologna  ;  the  glossators  ;  the  Bartolists,  or  com- 
mentators ;  the  fifteenth-century  preparation  for  humanist 
jurisprudence,  and  the  sixteenth-century  humanism.  An  ade- 
quate treatment  of  this  evolution  would  obviously  demand  many 
volumes  ;  but  for  the  purposes  of  the  present  study,  its  charac- 
teristic features  may  be  very  concisely  indicated,  so  as  to  enable 
us  to  discern  in  truer  perspective  the  bearing  and  significance 
of  the  main  subject  under  consideration. 

(a)  Roman  Law  to  the  Middle  of  the  Eleventh  Century. — The 
epoch  of  the  last  struggle  between  the  Western  Empire  and  the 
barbarians  was  marked  by  "the  romanization  of  the  provinces 
and  the  barbarization  of  Rome."2  The  imperial  courts  and  the 
Roman  law  exercised  supreme  authority  ;  but  the  principle  of 
personality,  in  view  of  racial  differences  and  conflicting  legal 
systems,  had  already  begun  to  assert  itself.  In  the  provinces, 
Roman  law  assumed,  in  the  hands  of  the  barbarians,  a  debased 
and  distorted  form.  Before  the  publication  of  the  Corpus  luris 
we  find  various  complications,  e.g.  the  edicts  of  the  Ostgothic 
Kings,  the  Lex  Romano,  Burgundionum,  the  Lex  Romano,  Visi- 
goihorum  (the  Breviarium  Alaricianum,  drawn  up  in  506,  as  an 

1  Cf.  for  the  history  of  Roman  law  in  the  Middle  Ages,  P.  Vinogradoff, 
Roman  Law  in  Mediaeval  Ewope  (London,  1909),  where  the  chief  authorities 
are  conveniently  given.     Special  reference  may  be  made  to  the  various  works 
of  H.  Fitting,  and  to  that  of  M.  Conrat  (Geschichte  der  Quellen  und  Literatur 
des  romischen  Bechts  im  fruheren   Mittelalter,   Leipzig,  1889-91).     For  the 
entire  subject,  however,  previous  to  Alciati,  the  great  work  of  Savigny  (Ges- 
chichte des  romischen  Rechts  im  Mittelalter)  still  remains  unsurpassed,  though 
later  contributions  have  in  many  respects  amended  some  of  his  views. 

2  Vinogradoff,  op.  cit.,  p.  4. 


60  ANDREA  ALCIATI  AND   HIS  PREDECESSORS 

abridgment  of  the  Theodosian  Code,  by  Alaric  II.),  the  last  of 
which,  serving  as  a  whole  body  of  law  for  the  Roman  population 
of  France  and  Spain,  long  exercised  a  great  influence  in  Western 
Europe.  The  compilation  of  Justinian,  some  three  decades  later, 
was  accepted  only  in  the  East,  and  in  those  parts  of  Italy  which 
that  legislator  had  retaken,  and  for  several  centuries  was  practi- 
cally dead  in  the  West.  Further  decay  is  shown  in  the  barbarous 
Lex  Romano,  Curiensis  (end  of  the  eighth  century),  a  statement 
of  legal  custom  based  on  an  imperfect  abstract  of  Alaric 's  Breviary, 
which  was  used  in  East  Switzerland,  North  Italy,  and  the  TJTO!  ; 
and  again  in  the  Romano-Germanic  Lex  legum,  which  embodies 
a  miscellany  of  rules  taken  from  the  Edict  of  Theodoric,  the  law 
of  the  Visigoths,  the  Justinian  Code,  and  barbarian  law. 

In  the  early  Middle  Ages,  the  barbarian  governments  could 
not  avoid  the  various  inconsistent  mixtures  in  their  legal  systems  ; 
and  even  under  the  Carolingian  sovereigns,  who  effected  therein 
some  harmony  and  unity,  racial  differences  were  emphasized, 
the  application  of  law  became  personal  and  local,  and  legislative 
conflicts  hence  obtained.  Nor  was  the  principle  of  personality 
entirely  eradicated  by  the  rise  and  operation  of  local  customs, 
which  naturally  assumed  a  Roman,  Lombard,  or  Frankish 
character,  according  as  one  or  other  race  predominated  in 
the  region  concerned.  And  Roman  law  supplied  the  basis  of 
such  customs  in  several  districts,  e.g.  in  Central  Italy  the  Jus- 
tinian Code  prevailed,  in  South  Italy  the  Corpus  luris  as  well  as 
the  law  of  Justinian's  successors,  in  South  France  and  North 
Spain  Alaric 's  Breviary  applied  ;  further  Roman  influence  was 
clearly  manifested  also  in  Germany,  in  North  France,  and  in 
England.  Moreover,  the  compilations  that  were  drawn  up  for 
ecclesiastical  use  show  a  great  indebtedness  to  Roman  juris- 
prudence :  thus  the  Lex  romana  canonice  compta,  a  Lombard  work 
of  the  ninth  century,  is  a  collection  of  Roman  rules  for  the  use 
of  the  clergy,  the  Colkctio  Anselmo  dictate,  is  a  mixture  of  Roman 
and  canon  law.  The  popes  and  the  pontifical  courts  consistently 
maintained  the  authority  of  a  good  deal  of  the  Roman  civil  law, 
and  esteemed  it  only  a  little  lowrer  than  the  canon  law.  In  the 
meantime  other  classes  of  works  helped  to  preserve  the  life  of 
Roman  law  ;  amongst  these  are  productions  like  the  Etymologies 
or  Origins  of  Isidore  of  Seville,  which  contains  extracts  from 
classical  literature,  enactments,  and  from  the  writings  of  juris- 
consults ;  and — what  is  much  more  important — the  numerous 


ANDREA  ALCIATI  AND    HIS   PREDECESSORS  61 

Epitomes,  Summae  (e.g.  the  Perugian  Summa  of  the  Code),  and 
Glosses1 — which  were  often  less  juridical  than  grammatical — on 
the  Code  and  the  Institutes  (e.g.  the  Pistoian  Gloss  on  the  Code, 
the  Turin  Gloss  on  the  Institutes). 

Thus  it  is  seen  that  Roman  law,  though  here  and  there  in  a  more 
or  less  debased,  adulterated,  or  garbled  form,  persisted  in  practice 
throughout  the  momentous  vicissitudes  of  the  five  centuries  after 
Justinian ;  neither  territorial  conquests  nor  the  development 
and  supremacy  of  the  feudal  system  could  entirely  crush  it.  As 
a  science  it  preserved  less  vitality  ;  the  earh'er  example  of  the  law 
schools  of  Rome,  Constantinople,  and  Berytus  proved  then  of 
no  avail ;  such  theoretical  teaching  and  systematic  study  of 
Roman  law  as  obtained  were  mainly  confined  to  the  schools  of 
the  clerical  and  monastic  orders,  and  even  then  commonly  re- 
garded as  supplementary  to  the  study  of  rhetoric  and  preparatory 
to  that  of  canon  law. 

(6)  A  Revival  in  the  Second  Half  of  the  Eleventh  Century. — 
The  eleventh  century  was  a  period  of  transition.  The  religious, 
social,  and  political  organization  of  Europe  underwent  considerable 
change.  The  papacy  had  made  continual  encroachments  on  the 
hierarchy  and  on  civil  governments,  and  now  in  Gregory  VII.  we 
see  the  great  representative  of  its  temporal  claims,  and  the 
opponent  of  the  secularization  of  the  Church.  The  feudal  system 
was  perfected.  Scholastic  philosophy,  with  its  dialectics,  its 
theological  and  metaphysical  speculations,  was  established  in 
the  age  of  Lanfranc  and  Anselm,  and  further  developed  by 
Abelard  and  Peter  Lombard.  A  juridical  renaissance — preceding 
the  revival  of  letters — was  witnessed,  and  bore  lasting  fruit  in 
certain  localities — in  South  France,  Lombardy,  Ravenna,  and 
Bologna.  About  the  middle  of  the  eleventh  century  a  know- 
ledge of  the  Pandects  spread  in  France  ;  and  by  the  side  of  Glosses 
and  abstracts  appeared  more  systematic  treatises,  e.g.  Petri 
exceptiones  legum  Romanorum  ("Excerpts  by  Peter  "),  a  manual 
designed  for  the  use  of  magistrates,  which  is  drawn  from  the 
Corpus  luris  and  refers  also  to  the  laws  and  customs  of  the 
barbarians  ;  the  Brachylogus  iuris  civilis,  a  compendium  of  the 

1  A  gloss  (glossa,  y\ucr<ra)  meant  originally  (for  example,  in  Greek  and 
Latin  writers)  an  archaic,  or  poetical,  or  foreign  word  requiring  interpretation. 
Later  it  was  referred  to  the  explanation  itself  ;  thus  Isidore  of  Seville  uses 
the  word  in  this  sense,  and  Alcuin  defines  it  accordingly :  "  unius  verbi  vel 
nominis  interpretatio."  With  the  glossators  the  gloss  was  extended  from 
single  words  to  entire  sentences  and  passages,  and  sometimes  became  a  running 
commentary. 


02  ANDREA  ALCIATI  AND   HIS   PREDECESSORS 

Justinian  law  made  on  the  model  of  the  Institutes,  and  taken 
from  the  Code,  Julian's  Epitome  (middle  of  sixth  century),  and 
Alaric's  Breviary  ;  and  the  recently  discovered  Lo  Codi  (c.  1149), 
a  summary  of  the  Code,  for  the  use  of  magistrates,  written  in  the 
Provencal  language,  is  mainly  remarkable  as  being  the  first 
work  on  Roman  law  in  a  vernacular  tongue.1  As  to  the  Lombard 
cities,  they  had  grown  in  population,  power,  and  wealth  ;  the 
organization  of  their  communes,  their  love  of  liberty  and  inde- 
pendence gave  to  civil  and  political  life  a  new  activity  and  new 
needs;  increasing  commercial  and  private  relationships  demanded 
a  civil  law  much  more  developed  and  consistent  than  that  which 
was  supplied  by  the  various  Germanic  tribes.  Glosses  on  Ger- 
manic law  made  more  and  more  reference  to  Roman  law  ;  and 
about  1070  appeared  the  Liber  Papiensis,  a  compilation  of  edicts 
and  capitularies  passed  by  the  magistrates  of  Pavia,  which 
presents  a  mixture  of  Roman  and  Lombard  law.  The  law  school 
of  Ravenna  became  conspicuous  for  its  support  of  Henry  IV. 
and  Clement  III.  against  Gregory  VII.,  but  it  was  soon  trans- 
cended by  the  school  of  Bologna,  founded  by  the  Marchioness 
Matilda  in  order  to  counteract  the  influence  of  Ravenna.  Pepo 
lectured  in  Bologna  about  1076  ;  but  the  most  illustrious  professor 
of  the  time  was  Irnerius,2  who  was  designated  by  the  subsequent 
glossators  the  "  lucerna  iuris."  His  lectures  on  the  Code  and  the 
Institutes  were  a  great  stimulus  to  the  study  of  Roman  juris- 
prudence. His  works  embrace  numerous  glosses,  summae  (sum- 
maries, compendiums)  of  Lombard  law  and  the  Code,  treatises 
on  legal  formulae  and  interpretation.  He  was  in  some  respects 
a  creator  ;  he  was  the  first  systematically  to  collate  and  compare 
texts,  and  establish  consistent  conclusions  therefrom.  Under  him 
Bologna  became  supreme  in  law  studies  ;  and  thence  began  a 
continual  flow  of  distinguished  Romanists  to  the  universities  of 
Italy,  France,  and  other  parts  of  Europe  ;  thus  Placentinus  did 
pioneer  work  at  Montpellier,  Vacarius  at  Oxford. 
ft  (c)  The  Glossators  (about  1100  to  1250). — The  immediate 
successors  of  Irnerius  were  the  "four  doctors,"  Bulgarus,  Mar- 
tinus,  Jacobus,  and  Ugo,  who  made  the  famous  declaration  at 

1  See  Vinogradoff,  op.  cit.,  pp.  00  seq. 

2  Irnerius  (Guarnerius  or  Warnerius)  first  taught  the  "  artes  liberates," 
and  probably  began  teaching  law  about  1088.     He  died  after  1125.— On  this 
part  of  the  subject,  the  chief  authority  is  H.  Fitting,  Die  Anf tinge  der  Rechts- 
tchulf  zu  Bologna  (Leipzig,  1888).      Cf.  also  G.  Pescatore,  Die  Glossen  des 
Irntrnt*  (Greiffcwald,  1888). 


ANDREA  ALCIATI  AND   HIS   PREDECESSORS  63 

the  Roncaglia  Diet  (1158)  in  favour  of  the  Emperor  Frederick 
Barbarossa's  right  to  tax  the  Lombard  cities.  Though  their 
leaning  was  to  monarchical  centralization  as  against  feudal  dis- 
integration, yet  their  decision  was  due  to  the  way  they  inter- 
preted certain  texts  of  Roman  law  rather  than  to  any  spirit  of 
political  partisanship .  They  regarded  feudal  law  as  a  development 
of  the  doctrine  of  emphyteusis.1  A  distinguished  pupil  of  Martinus 
was  Placentinus,  who  taught  at  Mantua,  Bologna,  and  then  at 
Montpelher,  where  he  died  in  1192.  The  teaching  of  Bulgarus, 
the  Chrysostom  of  jurisprudence,  was  transmitted  by  disciples 
like  Roger ius  and  Bassianus  to  Hugolinus  and  Azo,  and  by  these 
to  Accursius,  the  head  of  the  Bolognese  glossators.  Azo  (died 
c.  1230)  lectured  at  Bologna  and  Montpellier ;  and  his  gloss  and 
Summa  of  the  Institutes  and  Code  enjoyed  such  great  authority, 
especially  in  the  Courts,  that  a  knowledge  of  these  works  was 
considered  indispensable  to  those  who  aspired  to  sit  on  the  bench 
— "chi  non  ha  Azzo,  non  vada  a  palazzo."  In  England  he  was 
followed  by  Bracton,  whose  work  De  legibus  et  consuetudinibus 
Angliae  is  the  most  important  British  contribution  to  Romanistic 
jurisprudence.  It  was  intended  for  practitioners,  and  was  based 
largely  on  the  case  law  of  Henry  III.'s  age  and  on  Roman  materials 
derived  from  Azo.  Similarly,  in  Germany  appeared  manuals  of 
customary  law,  e.g.  Eike  von  Repgow's  Sachsenspiegel  (Saxon 
Mirror),  a  compilation  of  the  law  of  the  Saxons  ;  this  was  soon 
followed  by  kindred  productions,  showing  the  rising  influence  of 
Roman  conceptions .  The  Glossa  Ordinaria  of  Accursius  (c.  1 1 82 — 
1260)  is  a  comprehensive  collection  of  many  previous  glosses 
and  extracts  from  numerous  manuscripts,  most  of  which  are 
no  longer  extant ;  it  is  thus  an  epitome  of  the  entire  school,  and 
as  such  it  brings  together  and  compares  diverse  scattered  texts 
and  opinions,  and  endeavours  skilfully  and  acutely  to  reconcile 
seeming  inconsistencies. 

In  general  the  work  of  the  glossators  was  of  a  practical  character, 
designed  mainly  for  consultative  and  magisterial  purposes.  In 
some  quarters  the  Courts  attached  thereto  such  high  authority 
that  it  became  a  current  maxim  that  the  bench  recognized  only 
what  the  gloss  laid  down  :  "  Quod  non  agnoscit  glossa  non  agnoscit 
curia."  The  Glossae  offered  elucidations  and  interpretations  of 
individual  texts,  and  were  at  first  interlinear,  then  marginal  : 
sometimes  they  even  amounted  to  a  running  commentary  (ap- 

1  Cf.  Vmogradoff,  op.  cit.,  p.  51. 


64  ANDREA   ALCIATI  AND   HIS  PREDECESSORS 

paratus)  on  an  entire  book.  They  dealt  with  various  matters, 
from  mere  grammatical  notes  to  important  juridical  theories. 
The  Summae  attempted  a  more  systematic  treatment  of  par- 
ticular titles  or  whole  books  of  the  Justinian  compilation.  In 
the  earlier  legal  writings  the  scholastic  method  with  its  dialectical 
argumentation  is  in  the  ascendancy  ;  but  afterwards  in  the  more 
characteristic  work  of  this  school,  a  more  or  less  literal  inter- 
pretation, couched  in  concise  terms,  and  a  marshalling  of  texts 
and  opinions  constitute  the  general  mode  of  treatment,  though 
the  formal  method  is  still  applied  in  the  developing  of  conclusions. 
How  could  it  well  be  otherwise  in  an  age  which  produced  such 
pre-eminent  masters  of  scholastic  philosophy  as  Albertus  Magnus, 
Thomas  Aquinas,  and  Duns  Scotus  ?  However,  Justinian 
gradually  became  to  the  new  order  of  lawyers  what  Aristotle 
was  to  the  old.  Jurisprudence  did  not  become,  like  philosophy, 
the  servile  handmaid  of  theology.  Further,  the  law  of  procedure 
(or do  iudicarius]  was  set  forth,  and  collections  of  controversies 
(dissensiones)  and  investigations  (quaestiones)  on  this  and  other 
subjects  were  produced.  All  these  works  show  their  authors' 
knowledge  of  the  whole  Justinian  body  of  law,  except  the  Novels 
in  Greek.  But  the  writings  of  Gaius.  the  fragments  of  the 
classical  jurisconsults  like  Ulpian,  and  the  Basilica  seem  to  have 
been  unknown  to  them,  nor  did  they  take  account  of  the  Theo- 
dosian  Code  or  Alaric's  Breviary ;  they  made  use,  however,  of 
the  Lombard  canon,  and  feudal  law,  and  of  the  statutes  of  the 
Italian  cities.  To  them  is  due  that  strange  division  of  the  Digest 
which  is  usually  adopted  in  the  sixteenth-century  editions — 
Digestum  veins  (Bk.  I.— Bk.  XXIV.  t,  2),  Infortiatum  (Bk. 
XXIV.  t.  3— Bk.  XXXVIII.),  Digestum  novum  (Bk.  XXXIX. 
— Bk.  L.).  They  were  not  infrequently  on  the  right  line  in 
comparing  and  critically  examining  (as  Accursius  in  particular 
does)  various  texts,  in  order  to  arrive  at  the  correct  source.  But 
their  glaring  defects,  in  spite  of  much  good  and  useful  work,  were 
soon  to  bring  the  whole  school  into  discredit.  In  the  first  place, 
trivial  verbal  meanings  were  too  commonly  offered,  e.g.  quamvis 
as  an  equivalent  for  etsi,  absurd  explanations  were  sometimes 
propounded,  as  in  deriving  the  lex  Furia  Caninia  from  canis, 
Tiber  from  Tiberius,  and  in  interpreting  pontifex  simply  by 
episcopal  or  papa  ;  secondly,  superabundant  exegesis  tended  to 
overwhelm  the  intrinsic  content  of  the  text;  finally,  historic 
perspective  was  wanting,  alike  in  numerous  details  as  in  attribu- 


ANDREA  ALCIATI  AND   HIS   PREDECESSORS  65 

ting  to  Ulpian  and  even  Justinian  a  date  prior  to  the  Christian 
era,  confusing  Caracalla  (Antoninus)  with  Marcus  Antonius,  and 
in  more  fundamental  assumptions,  e.g.  that  the  Empire  under 
the  German  rulers  was  a  regular  continuation  of  the  Roman, 
and  therefore  subject  to  similar  law  and  polity.  A  good  many 
of  the  erroneous  interpretations  advanced  are  due  to  a  failure 
to  realize  the  historical  relationships  of  the  constituent  parts  of 
the  Corpus  Juris. 

(d)  The  Commentators,  or  Post-Glossators. — The  glossators 
had  done  much  to  restore  the  Justinian  law,  but  with  the  con- 
densation of  their  work  by  Accursius  and  the  almost  exclusive 
attention  paid  to  the  latter  by  courts  and  schools,  the  progressive 
movement  was  checked.  Texts  and  sources  were  disregarded  in 
favour  of  the  gloss.  It  was  said  that  some  even  went  to  the 
length  of  glossing  the  gloss  of  the  gloss.  The  school  of  the 
fourteenth  and  fifteenth  centuries — variously  designated  the  post- 
glossators,  the  commentators,  the  Scribentes,  or  Bartolistg — rose 
against  the  tyranny  of  the  gloss.  Some  of  the  earliest  representa- 
tives were  found  in  France,  e.g.  Jacques  de  Revigny  (Jacobus  a 
Ravanis,  d.  1296),  who  proved  himself  a  formidable  opponent 
and  skilful  dialectician,  and  his  pupil,  Pierre  de  Belleperche 
(Petrus  a  Bellapertica,  d.  1308),  who  became  Chancellor  of  France  ; 
in  Italy  we  find  the  jurist-poet  Cinus  a  Pistoia,  friend  of  Dante, 
model  of  Petrarch,  and  master  of  Bartolus.  Cinus  severely 
condemned  the  blind  devotees  of  the  gloss,  and  declared  that 
"glossa  ilia  est  diabolica  et  non  vera."1  The  Italian  Bartolus2 
(1314-1357),  who  taught  at  Pisa  and  Perugia,  was  the  acknow- 
ledged head  of  this  school ;  the  reactionaries  regarded  his  authority 
with  the  utmost  veneration,  styled  him  the  "monarcha  iuris,': 
and  some,  like  Jason,  spoke  of  him  as  a  terrestrial  deity.  Even 
Alciati  considered  him  in  some  respects  the  first  of  jurisconsults  ; 
but  Cujas  had  a  higher  opinion  of  Accursius.  The  works  of  Bar- 
tolus include  commentaries  (or  lecturae)  on  the  Digest  and  Code, 
treatises  on  public  law,  private  law,  and  on  procedure  (e.g.  Ordo 
iudicii,  De  testibus),  some  controversial  writings  (quaestiones), 
and  professional  consultations  (consilia).  In  many  quarters  these 
writings  enjoyed  the  force  of  law.  At  Padua  a  chair  was  estab- 
lished to  expound  the  law,  the  gloss,  and  Bartolus  ("lectura 

1  Comment  in  Cod.,  viii.  45.     Cf.  ibid.,  vi.  15 :  "  Ita  dixerunt  doctores  et 
glossa  .  .  .  et  quotquot  fuerint  etiarnsi  mille  hoc  dixissent,  oinnes  erraverunt." 
3  See  the  preceding  essay. 

6 


66  ANDREA  ALCIATI  AND   HIS  PREDECESSORS 

textus,  glossae,  et  Bartoli  "J1 ;  as  a  French  writer  remarks,  one 
had  almost  said  the  law  and  the  prophets.2  Other  prominent 
members  of  the  school  were— in  Italy,  Baldus  (1327-1406),  who 
taught  at  Perugia  and  Pa  via,  and  often  acted  in  a  judicial  and 
diplomatic  capacity,  P.  de  Castro  (d.  1438),  P.  de  Imola,  Jason 
de  Mayno,  B.  Caepolla,  P.  Decius  (1454-1535) ;  in  France,  G.  de 
Cuneo,  who  became  a  bishop,  J.  Faber  (d.  1340),  a  seigniorial 
judge  who  was,  through  his  practical  works,  called  "pater 
practicae."  Their  juristic  productions,  like  those  of  Bartolus, 
include  exegetical  works,  manuals  of  practice  and  procedure, 
casuist  works  consisting  of  casus,  quaestiones,  consilia,  and 
systematic  treatises.3 

The  aim  of  the  Bartolists  was  to  unite  practical  applications 
with  theoretical  disquisitions,  to  draw  from  Roman  jurisprudence 
a  law  that  would  meet  the  needs  of  their  time.  The  original  sense 
of  texts  was  thus  often  perverted  ;  Roman  elements  were  made  to 
serve  in  the  construction  of  doctrines  which  in  their  entirety  were 
foreign  to  ancient  civil  law.  And  in  this  process  the  dialectic 
method  of  the  scholastic  philosophy  was  adopted,  not  indeed  for 
the  first  time,  but  with  greater  thoroughness  and  subtlety.  Paris 
had  become,  through  the  influence  of  Abelard,  the  leading  centre 
of  scholasticism  ;  and,  as  Savigiiy  has  shown,4  this  method  was 
first  consistently  applied  to  law  by  French  legists  in  the  second 
half  of  the  thirteenth  century,  and  soon  after  Cinus  introduced 
into  Italy  the  doctrine  of  these  "  moderni  "  (as  they  were  called, 
in  contradistinction  to  the  earlier  glossators,  the  "doctores 
antiqui ").  Thus,  while  the  attitude  of  the  glossators  was  to 
some  extent  "humanistic  "  and  their  Roman  law  was  more  or 
less  divorced  from  actual  life,  in  the  hands  of  the  commentators 
there  was  usually  a  co-ordination  of  life  and  law,  together  with 
scholasticism.  They  correlated  Roman  law,  though  in  isolated 
texts,  with  canon  law  and  the  ordinances  and  statutes  of  the 
Lombard  cities,  and  in  such  correlation  they  were  always  mindful 
of  actual  forensic  causes.  The  glossators  had  deemed  the  Corpus 
luris  an  embodiment  of  the  ius  commune,  the  universal  law  of 
civilized  mankind  ;  but  this  was  so  on  theoretical  grounds.  Their 

1  Cf.  Savigny,  op.  cit.,  vol.  vi.,  p.  154. 

3  J.  Flach,  Cujas,  les  Olossateurs  et  les  Bartolistes,  in  Nouv.  Rev.  Hist,  de  dr. 
/ran.  et  ctranycr  (Paris,  1883),  vol.  vii.,  pp.  205-27,  at  p.  217. 

3  Cf.  J.  Brisnaud,  Coura  d'histoire  generate  de  droit  francais,  2  vols.  (Paris, 
1904),  vol.  i.,  pp.  219-20. 

*  Op.  cit.,  v.,  pp.  603  seq. 


67 

successors  went  further  and  imported  it,  in  an  adulterated  form, 
in  to  the  actual  legislative  construction  and  the  practical  ad- 
ministration of  justice ;  and  so  they  established,  as  it  were,  a 
"usus  modernus  Pandectarum."  Practitioners  paid  more  heed 
to  the  "communis  opinio  "  than  to  theory  and  cogent  reasoning 
from  first  principles ;  thus  the  citation  of  authorities  was  pre- 
ferred to  the  propounding  of  reasons.  Subtle  distinctions,  how- 
ever, as  well  as  arguments  pro  and  contra  abound.  Though  the 
Bartolists  were  contemporaries  of,  sometimes  intimate  with, 
some  of  the  greatest  literary  masters  the  world  has  ever  seen,  as, 
for  example,  Dante,  Petrarch,  Boccaccio,  yet  their  style  is  marked 
by  tedious  diffuseness,  prolixity,  commonplace  ;  the  observation 
of  Cujas  is  fully  merited — "  verbosi  in  re  facili,  in  difficili  muti, 
in  angusta  diffusi." 

In  Italy  and  France  their  influence  remained  till  the  coming  of 
men  like  Alciati  and  Cujas,  and  here  and  there  persisted  even  for 
some  time  after  ;  in  Germany  it  lasted  much  longer,  indeed  till 
the  time  of  Savigny.  In  the  latter  country  the  definitive  "  recep- 
tion "  of  Roman  law  took  place  in  the  fifteenth  century  ;  but  it 
was  an  impure,  glossed,  Bartolized  Roman  law;  the  "heutiges 
romisches  Recht "  was  more  Roman  in  name  than  in  sub- 
stance. 

(e)  The  Renaissance  of  Roman  Jurisprudence. — The  fifteenth 
century  brought  forth  no  predominating  jurist  like  Irnerius,  or 
Accursius,  or  Bartolus  of  the  preceding  centuries.  Circumstances 
were  at  first  not  favourable  to  legists.  Intestine  dissensions  and 
the  strife  of  political  parties  were  frequent.  The  excesses  of  un- 
restrained democratic  power  accelerated  the  downfall  of  the 
Italian  republics.  Professors  of  law  were  not  always  honoured 
in  their  own  countries ;  and  so  they  were  obliged  to  adopt  the 
wandering  life  of  peripatetic  teachers,  now  appearing  in  one 
university,  now  in  another.  Their  method  of  holding  "dis- 
putationes,"  substantially  borrowed  from  their  predecessors, 
saved  professorial  activity  from  absolute  barrenness.  They  com- 
bined practice  with  teaching  ;  and  in  their  consultations  they 
largely  used  principles  of  Roman  law.  Roman  law  had  come  to 
be  regarded  as  a  kind  of  "  common  "  law,  or  as  a  subsidiary  law 
useful  for  filling  up  gaps  in  local  legislations.  Amidst  the  multi- 
plicity of  customs  and  statutes,  varying  from  place  to  place, 
producing,  through  their  frequent  incompatibility,  conflicts  and 
confusion,  the  Roman  body  of  law  offered  principles  that  might 


68  ANDREA  ALCIATI  AND   HIS  PREDECESSORS 

be  universally  recognized  and  adapted  to  promote  greater  unity 
ajid  harmony.  Moreover,  it  was  looked  upon  with  favour  by 
the  clergy,  to  whose  interests  it  was  not  antagonistic,  and  also  by 
sovereigns,  whose  aggrandizement  it  did  not  oppose.  Further, 
the  century  was  fruitful  in  momentous  events,  which  prepared 
the  way  for  a  vigorous  revival  of  Roman  jurisprudence.  Con- 
stantinople fell.  Printing  was  invented,  and  great  improvements 
in  paper-making  were  effected .  Libraries,  manuscripts,  and  books 
multiplied.  Exploration  of  new  lands  was  undertaken.  A  deep 
interest  in  ancient  civilization  was  aroused  ;  the  study  of  classical 
history,  literature,  antiquities,  institutions  was  more  thoroughly 
cultivated.  In  Italy  the  literary  renaissance  had  already  estab- 
lished itself  in  the  previous  century.  And  now  we  find  not  so 
much  jurists  proper,  but  humanists  like  Ambrogio  Traversari 
(d.  1439),  who  translated  many  Greek  manuscripts  into  Latin, 
and  recommended  the  study  of  the  laws  in  their  original  sources 
and  not  in  the  compilations  of  the  commentators  ;  Laurentius 
Valla  (1405-1457),  who,  in  the  course  of  his  classical  and  philo- 
logical studies,  sometimes  threw  light  on  the  language  and  phrase- 
ology of  the  ancient  jurisconsults ;  and  Angelo  Politian  (1454- 
1494),  poet  and  scholar,  who  regarded  the  texts  of  Roman  law 
as  an  invaluable  product  of  antiquity — not  only  intrinsically,  but 
also  as  an  aid  to  solve  problems  of  Latin  philology — and  who 
was  one  of  the  very  earliest  to  apply  the  results  of  scholarship 
to  juridical  investigations,  in  his  comparison  of  an  edition  of  the 
Digest  printed  at  Venice,  1485,  with  the  famous  Florentine 
manuscript.  And  now  with  the  approach  of  the  sixteenth 
century  and  the  ever-increasing  humanistic  fermentation  mani- 
fested in  all  branches  of  intellectual  activity,  and  fast  spreading 
from  Italy  to  other  countries,  there  appeared  three  men — Alciati 
in  Italy,  Ulrich  Zasius  (d.  1535)  in  Germany,  and  Bude1  (Budaeus, 
14G7-1540)  in  France — who  showed  the  world  the  grave  defects 
of  the  glossators,  the  commentators  and  their  legal  predecessors 
in  general,  and  inaugurated  with  greater  thoroughness,  con- 
sistency, and  systematic  application  a  more  rational  and  scientific 
method  for  the  study  and  true  comprehension  of  Roman  law. 
And  of  these  men,  Alciati  was  the  greatest. 

Estienne  Pasquier,  who  commenced  in  1561  the  publication 
of  his  RecJi&rches  de  la  France,  classified  the  jurists  from    the 
twelfth  to  the  sixteenth  century  into  three  schools,  viz.  the 
1  His  work  relating  to  law  is  Annotationes  ad  Pandectas. 


ANDREA  ALCIATI   AND   HIS   PREDECESSOES  69 

Glossators,  the  Scribentes  (so  called,  as  he  says,  by  scholars,  and 
whom  he  terms  "Docteurs  de  droict "),  and  the  "  Humanistes," 
so  called  "  pour  avoir  mesle  en  beau  langage  latin  les  Lettres 
Humaines  avec  le  Droict."  He  goes  on  to  say  that  the  sixteenth 
century  brought  forth  "une  nouvelle  estude  de  Loix,  qui  fut  de 
faire  un  mariage  de  1'estude  du  Droict  avecques  les  Lettres 
Humaines,  par  un  langage  latin  net  et  poly." l 

Life  of  Alciati.2 — Andrea  Alciati  or  Alciato  (Andreas  Alciatus) 
was  born  May  8,  1492,  in  Alzate  near  Como  in  the  Milanese. 
He  was  an  only  son,  and  his  father,  Ambrogio,  a  wealthy  mer- 
chant, was  a  decurion  (municipal  magistrate  or  councillor)  in 
Milan,  and  had  acted  as  envoy  to  Venice  ;  his  mother,  Margherita, 
was  a  woman  of  high  nobility.  Among  his  ancestors  were  men 
distinguished  in  Church  and  State  and  in  learning.  From  his 
early  youth  he  was  devoted  to  studies.  He  received  his  first 
education  in  Milan,  an  important  centre  of  the  Hellenic  renais- 
sance. One  of  his  masters  there  was  Janus  Parrhasius,  a  Nea- 
politan, to  whom  he  was  largely  indebted  for  his  knowledge  of 
the  classical  languages,  especially  Latin  ;  and  among  his  school 
friends  was  Franciscus  Calvus.  About  1508  Alciati  proceeded, 
with  a  view  to  study  law,  to  the  university  of  Pa  via,  where  he 
attended  the  lectures  of  professors  like  Jason  Maynus  (de  Mayno), 
who  adhered  for  the  most  part  to  the  traditional  method  of 
exposition  by  dealing  with  the  "  communis  opinio  "  rather  than 
with  the  legal  text  itself,  but  whose  taste  for  ancient  literature 
greatly  influenced  Alciati ;  Philippus  Decius,  who  showed  great 
skill  in  his  vigorous  disputations  with  Maynus  ;  and  Paulus 
Picus  a  Monte  Pico,  whose  discourse,  as  Alciati  wrote  in  1522, 
was  marked  by  labyrinthine  confusedness  and  obscurity.3  It 
appears,  from  an  observation  made  at  Basel  University  by  his 
friend,  Bonif  acius  Amerbach,  in  1 526,  that  Alciati  recognized  the 
futility  of  his  three  years'  legal  course  as  soon  as  he  directed 
his  attention  to  Justinian's  Institutes,  instead  of  glosses  and  com- 

1  Liv.  ix.  c.  39. — The  term  "  humanitas  "  as  applied  to  the  classical  culture 
of  the  Renaissance  is  found  much  earlier.     Thus  in  a  medallion  (made  by 
Pisano  before  1450)  of  Pier  Candido  Decembrio  (1399-1477),  the  latter  is 
described  as  "  studiorum  humanitatis  decus."     Of.  L.  Geiger,  Renaissance  und 
Humanismus  in  Italien  und  Deutschland  (1882),  p.  167. 

2  This  section  of  the  paper  is  much  indebted  to  E.  von  Moeller,  Andreas 
Alciat  (Breslau,  1907). 

3  Emblemata,  ed.  1599,  p.  115,  No.  96 : 

"  Obscurus  et  confusus,  ut  Picus  fuit, 
Labyrinthua  appellabitur." 


70  ANDREA  ALCIATI  AND  HIS  PREDECESSORS 

ment Aries  -1  In  1 51 1 ,  owing  perhaps  to  war  disturbances,  Alciati 
removed  to  Bologna,  and  became  a  pupil  of  Carolus  Ruinus. 
Two  years  afterwards,  whilst  still  a  student,  he  published  his  first 
work— written,  as  he  himself  says,  in  a  fortnight— a  commentary 
(Annotaticmes)  in  tres  libros  Codicis  (the  last  three  books  of  the 
Justinian  Code),  which  filled  a  gap.  The  first  nine  books  were 
well  known  in  the  Middle  Ages,  and  were  often  referred  to  as  the 
Codex ;  but  the  remaining  portion,  dealing  mainly  with  public 
lavs-  and  possessing  greater  historical  than  practical  interest,  was 
much  neglected.  This  work  not  only  showed  the  young  author's 
knowledge  of  ancient  literature,  but — what  was  of  more  vital 
importance — contained,  in  brilliant  style,  definitely  formulated 
demands  for  a  new  method  of  jurisprudence,  in  harmony  with 
humanist  conceptions.2  The  following  year  the  doctor's  degree 
was  conferred  on  him. 

Alciati  now  returned  to  Milan,  and  became  a  member  of  the 
College  of  Jurists  ("Collegium  iurisconsultorum  ")  with  a  view  to 
pract ising  at  the  bar.    He  was  mindful  of  the  proverbial  saying — 
"  Esto  advocatus  iuvenis  et  medicus  senex  "-—that  whereas  long 
experience  is  necessary  in  a  doctor,  energy,  ardour,  ambition, 
untiring  handling  of  authorities  would  stand  a  young  advocate 
in  good  stead  ;  moreover,  as  Accursius  had  said,  "  Quanto  iuniores 
tanto  perspicaciores."3    The  first  case  in  which  his  opinion  was 
asked  was  one  of  witchcraft.    The  accusation  had  first  been 
brought  before  the  Ecclesiastical  Court,  and  the  presiding  bishop 
before  delivering  judgment  submitted  the  question  to  Alciati. 
The  inquisitor's  allegations  were  parried  by  Alciati  with  urbane 
good -humour  ;  yet  the  young  lawyer  does  not  appear  to  have 
differed  fundamentally  on  this  matter  from  his  contemporaries.4 
In  1518  he  was  appointed  professor    extraordinary  ("regens 
extraordinarily  ")  at  Avignon,  for  a  period  of  two  years,  at  a 
st  ipond  of  300  ducats  (about  £105).    At  the  same  time  Franciscus 
a  Hi  pa  entered  the  law  faculty,  and  both  of  them  obtained  the 

ight   to   confer   certain   degrees.    Henceforth   began   Alciati's 
series  of  writings — his  Dispunctione^,  Praetermissa  and  Pamdoxa 

—and  his  great  influence  on  the  new  movement  in  France.     On 

1  Cf.  T.  Burokhardt-Biedermann,  Jionifacius  Amerbach  und  die  Reformation 
Bawl.  181M).  pp.  19.'?  8eq.  (cited  by  Moollcr,  p.  17,  n.  1). 

2  On  this  wo  further  infra. 

3  Cf.  what  Alciati  says  in  his  Parrrga,  x.  c.  21  ;  in  Opera,  4  vols.,  folio,  ed. 
'.  AlcintUH  (Prancofurti,  1017),  in  vol.  iv.  col.  4f>5. 

*  Farrrcjn,  viii.  o.  22  (Opera,  iv.  col.  424). 


ANDREA  ALCIATI  AND   HIS   PREDECESSORS  71 

the  completion  of  his  term,  he  was  about  to  return  to  Italy  owing 
mainly  to  the  inadequacy  of  his  salary ;  but  the  authorities 
secured  a  renewal  of  the  engagement  for  two  years  more  at  an 
increase  of  a  hundred  ducats.  His  fame  now  spread  rapidly 
throughout  Europe.  At  this  time  he  had  an  audience  of  some 
700,  including  old  as  well  as  young  students,  lay  and  ecclesiastical, 
noblemen,  abbots,  and  other  dignitaries  of  Church  and  State.1 
In  the  winter  term,  1520-1,  he  lectured  on  the  title  "  De  verborum 
significatione,"  and  by  his  learning  and  style  roused  universal 
admiration.  Sympathetic  hearers  realized  that  Alciati  invested 
with  flesh  and  blood  what  had  really  been  dry  bones,  and  imparted 
to  it  fresh  life  and  sprit.  From  many  countries  scholars  sent 
him  warm  greetings  and  commendatory  epistles.  Ulrich  Zasius,2 
struck  by  the  brilliance,  erudition,  and  penetration  of  the  Para- 
doxa,  which  seemed  to  the  eminent  German  jurist  literally  true 
rather  than  presumedly  paradoxical,  wrote  to  Bonifacius  Amer- 
bach3  that  a  mighty  reformer  of  the  study  of  Roman  law  had 
arisen,  and  expressed  his  readiness  to  fight  under  Alciati's  flag. 
Amerbach  at  once  went  to  Avignon  to  continue  his  legal  studies. 
At  this  time  (1520)  Alciati  also  met  Budaeus,  and  soon  after 
began  to  correspond  with  Zasius.  Thus  was  established  that 
remarkable  triumvirate — already  designated  "  triumviratus  con- 
stituendae  rei  pandectariae,"  and  so  recognized  by  Erasmus, 
the  very  prince  of  humanists — which  exercised  such  a  profound 
influence  on  the  subsequent  development  of  scholarship  and 
jurisprudence.  "  Zasius,  Budaeus,  and  Alciat  sind  das  Dreiges- 
tirn  das  damals  am  Himmel  der  Jurisprudenz  leuchtete."4 
Shortly  afterwards  Amerbach  introduced  Erasmus  and  Alciati 
to  each  other,  and  many  letters  thereafter  passed  between  them. 
Nevertheless  the  Italian  jurist  was  not  without  opponents  both 
in  France  and  Italy.  In  1521,  owing  to  an  outbreak  of  plague, 
the  university  of  Avignon  was  closed,  and  Alciati  returned  to 

1  Moeller,  p.  34. 

2  Zasius  was  born  in  Constance,  1461,  and  died  in  1534  ;  he  was  thus  much 
older  than  Alciati.     He  was  appointed  a  notary  of  the  episcopal  Court  in  his 
native   town  and  the  highest  functions  were  afterwards  entrusted  to   him. 
In  1500  he  became  a  professor  in  the  university  of  Friburg.     He  agreed  with 
Alciati,  as  he  himself  avowed,  on  the  main  points,  and  differed  only  on  minor 
details.     In  one  respect,  however,  he  was  quite  unlike  his  Italian  friend — 
he  was  not  a  migratory,  wandering  professor,  but  adhered  to  his  own  univer- 
sity.— Cf.  R.  von  Stintzing,   Ulrich  Zasius.     Ein  Beitrag  zur  Oeschichte  der 
Rechtsurissenschaft  im  Zeitalter  der  Reformation  (Basel,  1857). 

3  U.  Zasii  Epistolae,  ed.  J.  A.  S.  von  Biegger  (1774),  ii.,  pp.  12  seq. 

4  Moeller,  p.  38. 


72  ANDREA   ALCIATI  AND   HIS   PREDECESSORS 

Milan,  where  he  resumed  his  practice ;  but  learning  that  the 
danger  in  Avignon  was  over,  he  went  back  in  November.  In 
the  following  spring  the  plague  reappeared  ;  but  meanwhile  his 
engagement  terminated.  A  renewal  was  proposed  to  him,  with 
the  condition  that  his  stipend  should  be  proportionately  reduced 
if  the  plague  again  suspended  teaching.  He  rejected  this  offer 
and  left  for  Milan,  where  he  published  the  first  edition  of  his 
celebrated  book  of  Emblems  (Emblematum  libellus). 

His  practice  grew  fast;  but  his  restless  disposition  got  the 
better  of  him,  and  he  became  anxious  to  obtain  a  professorship 
in  an  Italian  university,  preferably  in  Padua.    In  1523  he  suffered 
great  loss  through  the  prevailing  wars  and  tumults ;  his  house 
was  burnt  down,  and  everything  in  it  destroyed.    In  spite  of  his 
increasing  dientda  (which  in  a  letter  he  jestingly  describes  as 
"elitellae,"  a  pack-saddle  for  beasts  of  burden),  he  found  time 
for  pursuing  his  literary  activities,  and  for  cultivating  various 
branches   of   knowledge — philology   as   well   as   jurisprudence, 
theology,  and  history,  cookery  by  the  side  of  medicine,  and  several 
other  subjects.    As  a  humanist  he  loved  the  "  bonae  literae  " 
as  much~as  the  Corpus  luris ;  he  translated  into  Latin  plays 
from  the  Greek  (for  example,  the  Clovds  of  Aristophanes)  wTote 
epigrams,  completed  his  Emblemata,  and  even  produced  a  comedy 
(entitled  "  Philargyrus, "  i.e.  the  lover  of  money).    He  followed 
with  keen  interest  the  momentous  events  of  the  time,  and  es- 
p^cially  those  relating  to  the  kindred  movements,  the  Renaissance 
and  the  Reformation.    His  German  friends  kept  him  in  touch 
with  the  happenings  in  Germany  ;  in  his  correspondence  we  find 
frequent  references  to  Luther's  burning  of  the  papal  bull  (1520), 
and  to  the  burning  of  his  own  writings  ;  and  he  states  that  Luther's 
personality  made  a  deep  impression  on  him,  though  he  did  not 
admire  the  great  reformer's  invective  and  rough  manners.    Alciati 
never  abandoned  Catholicism  (in  which  respect  he  was  unlike 
a  good  many  of  the  humanists  and  legists  of  the  time) ;  neverthe- 
less he  was  adverse  to  the  licence  of  the  papal  court,  as  well  as 
any  belief  of  a  superstitious  character  and  to  violent  assertion 
f  authority  wherever  found.    But  knowledge,  not  religion,  was 
Early  in  1528,  fresh  war  disorders  breaking  out 
suddenly  in  Milan,  he  went  back  to  Avignon. 

i  succeeding  professorship  in  Bourges  (1529-1533)  marks  an 
it  period  in  his  career,  and  in  the  development  of  human- 
1  Mocller,  p.  48. 


ANDREA  ALCIATI  AND   HIS   PREDECESSORS  73 

1st  jurisprudence,  particularly  in  France.  In  the  Renaissance 
movement  the  decline  of  Italy  was  followed  by  the  ascendancy 
of  France.  At  the  beginning  of  the  sixteenth  century  Italian 
culture  was  fast  passing  over  to  the  latter  country ;  and  this 
transference  was  accelerated  by  the  intercourse  and  circum- 
stances incidental  to  the  French  wars  in  Italy.  Francis  I.  was  a 
great  admirer  and  patron  of  Italian  art  and  learning  ;  Italian 
artists,  linguists,  and  scholars  found  a  ready  welcome  in  his  court. 
Thus  Alciati,  feeling  that  he  was  already  highly  appreciated  in 
France,  that  his  new  doctrines  might  meet  there  with  wider 
sympathy  and  acceptance,  and  that  the  sovereign's  protection 
might  further  his  cause,  therefore  assented  to  the  offer  of  a  two 
years'  engagement  (the  usual  period)  in  Bourges — in  succession 
to  the  Portuguese  Salvator  de  Ferrandina — at  a  salary  of  600 
ducats,  together  with  travelling  allowance,  etc.  Here  Alciati 
soon  took  part  in  numerous  controversies  with  eminent  men,  for 
example,  with  Pierre  de  PEstoile  (Petrus  Stella),  a  famous  pro- 
fessor of  law  in  the  university  of  Orleans,  and  with  Budaeus, 
particularly  in  regard  to  ancient  weights  and  measures  (on  which 
subject  Alciati  had  already  produced  his  treatise,  De  ponderibus 
et  mensuris).  His  lectures,  inaugurated  by  a  public  disputatio, 
"De  quinque  pedum  praescriptione "  (which  was  afterwards 
published  together  with  the  replies  of  his  six  opponents),1  consisted 
of  expositions  and  interpretations  of  certain  titles  of  the  Digest 
and  Code,  e.g.  "De  verborum  obligationibus  "  and  "De  pactis." 
Alciati  now  added  to  the  number  of  his  distinguished  friends  some 
of  the  leading  lights  of  the  French  Renaissance,  such  as  Mon- 
taigne ;  and  he  met  with  a  great  reception  from  his  students, 
who  flocked  to  him  from  all  parts  of  Europe,  especially  France, 
Italy,  and  Germany,  and  many  of  whom  were  already  distin- 
guished, or  were  destined  to  become  so.  The  mere  mention  of 
the  names  of  some  of  them  show  what  a  remarkable  concourse 
of  men  of  intellect,  energy,  and  genius  listened  to  his  lectures. 
There  were  John  Calvin,  Viglius  von  Zuichem,  Karl  Sucquet  (the 
latter  two  having  been  recommended  to  Alciati  by  Erasmus, 
who  urged  them  to  combine  literature  with  jurisprudence). 
Frangois  Connan,  a  friend  of  Calvin,  Theodore  Beza,  J.  Amyot, 
M.  Wolmar,  C.  Gessner,  J.  Canaye,  Ausonius  Hoxvir,  and  others.2 
Other  notable  personages  came  occasionally  to  hear  his  discourses, 
e.g.  the  Dauphin,  and  even  Francis  I.  himself.  On  the  occasion 
1  Opera,  iii.  col.  339  seq.  2  Moeller,  p.  59. 


74  ANDREA   ALCIATI  AND   HIS   PREDECESSORS 

of  the  latter's  visit  Alciati  adorned  his  introductory  address  with 
apt  citations  ;x  he  emphasized  the  greatness  and  magnificence 
of  Roman  jurisprudence,  the  high  respect  due  to  it,  and  pointed 
out  that  even  the  peoples  who  demolished  the  Roman  Empire 
gladly  preserved  the  Roman  law  ("libentissime  ius  Romanum 
servaverunt "),  and  by  way  of  an  elegant  compliment  to  the 
king  ended  with  the  lines  of  Ausonius  addressed  to  the  Emperor 
Theodosius.2 

Alciati's  fame  continued  to  extend  ;  the  number  of  his  hearers 
increased  from  term  to  term.  So  he  applied  for  an  increase  in 
his  stipend.  At  the  same  time,  however,  he  was  thinking  of 
Italian  universities  like  Padua  and  Siena,  and  was  negotiating 
with  the  secretary  to  the  Duke  of  Milan.  To  the  latter  he  wrote 
that  teaching  was  more  agreeable  in  France  than  in  Italy,  where 
there  were  among  the  students  hostile  cliques  who  turned  up  their 
noses  at  humanistic  culture.3  In  March,  1531,  his  appointment 
at  Bourges  was  extended  for  two  years  more  at  double  the 
previous  stipend.  (His  negotiations  with  the  Italian  authorities 
had  had  the  desired  effect.)  Now  publications — lectures,  disser- 
tations, translations,  poems — appeared  in  rapid  succession.  The 
climate  of  the  locality,  however,  proved  uncongenial  to  him,  and 
in  1532  he  suffered  several  months'  illness.  This  circumstance, 
together  with  disputes  which  arose  between  him  and  the  university 
as  well  as  with  the  municipal  authorities,  induced  him  to  leave 
Bourges.  He  was  urged  by  Bembo  (then  secretary  to  Leo  X., 
afterwards  cardinal)  to  go  to  Padua,  but  was  not  satisfied  as  to 
the  amount  and  security  of  the  stipend.  Aurelius  Albucius,  a 
delegate  from  Pavia,  came  to  him  from  Francis  Sforza,  Duke  of 
Milan,  with  promises  of  dignities  and  honours  (e.g.  that  of  senator) 
and  an  offer  of  1,500  ducats.  On  the  conclusion  of  his  engage- 
ment, Alciati  left  for  Pavia. 

At  the  Italian  university  his  expectations  were  not  fully 
realized.  Thus  in  his  letters  to  Bembo  he  complained  of  the 
effrontery  of  the  "scholastici,"  and  regretted  that,  whereas  the 
French  and  the  Germans  accepted  his  ideas  with  favour,  the 
Italian*  received  them  with  mockery  and  derision.  The  year 
1535  is  described  as  a  most  brilliant  one  for  the  university  of 

1  Cf.  Opera,  iv.  col.  870  seq. 

"  Xon  habco  ingcnium  ;  Princepa  sed  iussit :  habeo. 
Cur  me  ponsc  negom,  posse  quod  ille  putat." 

Analecta  Bdgica'  L  l  <1743)>  PP-  73  Se1'   (Citcd 


ANDREA  ALGIATI  AND   HIS  PREDECESSORS  75 

Pa  via,  both  as  regards  the  lustre  of  the  professorial  chairs  and  the 
numbers  of  students.    At  this  time  Alciati  suffered  great  loss 
through  the  death  of  illustrious  friends.    Zasius  died  in  1535. 
Sir  Thomas  More,  who,  like  many  other  great  humanists  of  the 
Renaissance,  had  exchanged  letters  with  the  Italian  juristic 
pioneeer,  was  executed  in  the  same  year.    And  in  1536  Erasmus 
died,  of  whom  Alciati  wrote,  "  cuius  fama  frequens  totum  circum- 
volat  orbem."    In  the  latter  year  appeared  the  first  part  of  the 
Parerga;  and  also  Processus  iudicarius,  a  work  which  the  publisher 
falsely  ascribed  to  Alciati,  as  he  knew  too  well  the  value  of  the 
name  when  placed  on  the  title-page.     Owing  to  the  outbreak  of 
war  between  the  Emperor  Charles  V.  and  Francis  I.,  Alciati's 
activity  in  Pa  via  was  interrupted  ;  many  students  left  the  town  ; 
and  Alciati  wrote  to  Amerbach  that  only  his  solicitude  for  his 
mother  prevented  his   abandoning   professorship,   clients   and 
property.    At  the  end  of  1537,  however,  he  accepted  for  three 
years  a  chair  at  Bologna  ;  the  reduced  sum  of  1,200  ducats  shows 
that  on  this  occasion  his  bargaining  capacity  failed  him.     Here 
the  unruly  students,  by  their  tricks  played  on  him  as  well  as  on 
other  professors,  caused  him  much  annoyance.    Alciati  discerned 
in  this  academic  hostility  or  indifference  a  certain  sign  of  the 
lamentable    decline    of    Italian    humanism.    As    Paolo    Giovio 
(Paulus    Jovius)  said,1  almost  in  Alciati's  words,  the  flame  of 
knowledge  was  extinguished  in  Italy  about  the  middle  of  the 
sixteenth  century,  and  passed  over  to  France  and  Germany. 
In  1538,  in  consequence  of  a  rumour  that  Alciati  was  thinking  of 
leaving  Bologna  before  the  due  expiration  of  his  engagement, 
the  Bolognese  threatened  to  confiscate  his  property,  and  also 
made  an  appeal  to  the  pope.     However,  he  made  new  friendships, 
like  that  of  Vasari  (then  a  young  painter),  and  so  agreed  to  remain 
a  fourth  year  at  the  university.     At  the  instance  of  Charles  V. 
he  was  then  recalled  to  Pa  via  ;  but  hostilities  having  arisen  again 
(1542)  between  the  Emperor  and  Francis  (notwithstanding  the 
ten  years'  truce  agreed  upon  in  1538  between  them  and  the 
pope),  he  migrated  to  Ferrara  at  the  invitation  of  Hercules 
d'Este,  and  was  there  treated  with  great  liberality  and  con- 
sideration.   The  pope,  Paul  III.,  conferred  on  him  the  title  of 
apostolic  protonotary,  though  it  appears  that  Alciati  had  expected 
a  cardinalate.    In  a  letter  to  a  friend  written  at  this  time  he 
offers  an  apology  for  his  wandering  life  :  what  with  the  commands 
1  In  his  Historiae  sui  temporis  (Florence,  1550-1552). 


76  ANDREA  ALCIATI  AND  HIS  PREDECESSORS 

of  sovereigns  and  the  tumults  of  war  he  is,  he  says,  driven  about 
hither  and  thither,  and  is  deprived  of  rest  and  tranquillity ;  he 
thinks  a  book  might  some  day  be  written  on  the  peregrinations 
of  jurisconsult*  and  especially  of  himself.1  In  spite  of  his  feeling 
unsettled  he  continued  with  his  Parerga,  and  in  1543  added  eight 
new  books.  Three  years  later  he  was  back  again  in  Pavia.  For 
Borne  time  he  suffered  great  physical  pain  ;  and  his  restless  career 
was  brought  to  an  end  on  January  12,  1550.  He  was  buried  in 
the  church  of  S.  Epifanio. 

His  death  was  universally  lamented.  Alessandro  Grimaldi 
expressed  the  feeling  of  all  when  he  said  at  the  funeral  oration 
that  the  passing  away  of  their  eminent  jurist  laid  a  great  sorrow 
on  Pavia,  on  Italy,  on  France,  on  the  whole  world.  It  was  said 
that  with  his  death  law  itself  was  dead,  that  the  muses  perished. 
His  epitaph,  more  modest,  shows  the  great  esteem  in  which  he 
was  held  and  the  recognition  of  his  pioneer  services  in  restoring 
the  study  of  jurisprudence  to  its  ancient  glory  :  "  Qui  omnium 
doctrinarum  orbem  absolvit,  primus  legum  studia  antiquo  resti- 
tuit  decori."2 

Alciati  was  a  man  of  vigorous  constitution,  of  over  medium 
height,  broad-chested,  inclined  somewhat  to  corpulence;  his 
complexion  was  swarthy  brown,  and  he  had  big,  wide-open 
prominent  eyes,3  thick  lips,  a  long  nose,  and  large  ears.  All 
these  characteristics  gave  him  a  striking  appearance,  which  could 
not  fail  to  attract  notice  ;  and  his  speech,  accompanied  (as  Cardano 
says)  by  a  smile  which  ever  played  about  his  lips,  commanded  the 
attention  of  his  hearers. 

Alciati's  Writings  and  their  Character. — Alciati's  writings  do 

not  present  a  dogmatic  or  systematic  treatment  of  law  or  of  any 

ot  her  subject .    They  are  more  or  less — and  necessarily  so,  having 

regard  to  the  time  and  circumstances  of  their  production — of  a 

fragmentary  character,  and  as  such  they  represent  the  life-long 

strivings  of  an  ardent  explorer,  and  the  results  attained  by  him. 

i  aim  was  to  demonstrate  the  intrinsic  significance  of  the 

Tian  law,  to  clear  it  from  the  spurious  additions  made  by  alien 

,  to  set  it  forth  in  the  condition  in  which  it  left  the  classical 

consults,  and  interpret  its  meaning  and  application  not 

•>ugh  the  vision  of  subsequent  glossators  and  commentators, 

rom  the  point  of  view  of  the  time  and  place  of  its  elaboration. 

I  Opera,  iv.  col.  801  seq. 

>11ftti.  HMiothfca  scriptorum  Mediolanensium  (Mediolani,  1745), 
3  Ibid.,  i.  col.  24. 


AtfDREA  ALCtATl  AND   fllS  PREDECESSORS  77 

For  this  purpose  Alciati  did  not  adopt  a  regular,  definite  method 
either  in  his  professorial  lectures  or  in  his  literary  productions. 
This  is  seen  in  the  very  titles  of  his  writings — "  Paradoxa  " 
(paradoxes,  seemingly  incredible  views),  "  Praetermissa  "  (things 
overlooked  or  omitted),  "  Parerga  "  (obiter  dicta,  appendices), 
"  Dispunctiones "     (examinations,     investigations,     revisions), 
"  Annotationes  "  (annotations,  remarks),  and  so  on.     Besides 
his  voluminous  commentaries  on  various  titles  of  the  Digest  and 
the  Code,  he  wrote  miscellaneous  treatises  and  contributions, 
such  as  De  magistratibus,  De  praesumptionibus,  De  ponderibus  et 
mensuris,  De  verborum  significatione,  etc.    His  legal  opinions 
(Responsa),  comprised  in  a  posthumous  publication  the  fourth 
edition  of  which,  issued  at  Basel  in  1582,  contains  some  eight 
hundred  decisions,  relate  to  municipal  law,  canon  law,  feudal 
law,  criminal  law,  wills,  contracts,  privilegia,  and  civil  procedure. 
Some  of  these  opinions  throw  light  on  important  controversies 
of  contemporary  history,  as,  for  example,  the  conflict  between 
Duke  Ulrich  of  Wurtemberg  and  Ferdinand  of  Austria,1  and  that 
between  Duke  Henry  the  younger  of  Brunswick  and  Goslar.2 
Alciati's  interest  in  history  is  shown  apart  from  his  devotion 
to  ancient  life  and  institutions,  by  his  Encomium  historiae  (1530), 
though  already  in  1519,  in  his  dedicatory  epistle  to  his  Notes  on 
Tacitus,  he  emphasized  the  value  and  importance  of  historical 
science.    In  the  latter  work  he  skilfully  compares  and  contrasts 
Livy  and  Tacitus,  and,  being  the  sound  judge  that  he  is,  he  has 
no  hesitation  in  awarding  to  the  latter  a  much  higher  rank.3    He 
began  also  a  history  of  Milan,  which  reaches  to  the  fifteenth 
century  ;  in  this  work,  however,  he  does  not  manifest  a  very  great 
critical  power  in  the  handling  of  the  sources,  but  shows  too  strong 
a  leaning  to  roam  in  curious  interesting  by-paths.     "  Er  besass 
in  hohem  Masse  .  .  .  den  Sinn  fiir  das  Interessante."4    But  his 
collection  of  inscriptions  has  a  much  greater  value,  and  has  been 
utilized  by  later  researchers.    No  less  a  writer  than  Mommsen, 
whose  authority  in  this  category  of    historical  documents  is 
supreme,  has  declared  that  not  only  did  Alciati  reform  juris- 
prudence, but  he  also  laid  the  foundations  of  the  science  of  epi- 
graphy.5   As  a  humanist  he  had  a  deep  love  for  classical  litera- 

1  Responsa,  col.  354  seq.  2  Ibid.,  col.  694  seq. 

3  Opera,  iv.  col.  876.  *  Moeller,  p.  125. 

5  Corpus  Inscriptionum  Lalinarum,  vol.  v.  pt.  2  (Berlin,  1877),  pp.  624  seq.  ; 
at  p.  624,  col.  2 :  "  .  .  .  Non  solum  iuris  prudentiain  reformavit,  sed  etiam 
epigraphiam  ita  fundavit,  ut  primus  corpus  conderet  inscriptionum  patriarum 
itaque  viam  aperiret." 


78  ANDREA  ALCIAT1  AND  HIS  PREDECESSORS 

t  ure  ;  he  issued  several  Latin  translations  from  the  Greek,  e.g.  a 
version  of  Aristophanes'  Clauds,  and  also  a  compilation  of  epi- 
grams (Selecta  epigrammata  graeca  latine  versa,  1529).  He  wrote 
also  an  original  comedy  which  has  already  been  mentioned,  and  a 
number  of  Latin  poems,  the  most  important  of  which  are  his 
EmMertis,  which  were  widely  appreciated :  indeed  numerous 
editions  were  published  in  many  countries,  and  translations  into 
most  European  languages  were  made  in  course  of  time.  Finally 
he  wrote  a  treatise  on  duelling  (De  singulari  certamine),  and  the 
various  questions  arising  he  discusses  not  merely  as  a  skilful 
lawyer,  but  as  a  luminous  writer  possessing  both  classical  and 
modern  culture. 

His  works  are  written  in  a  clear  fluent  style,  free  from  tedious 
circumlocutions,  pedantic  heaviness,  and  pompous  display  of 
scholarship.  This  is  all  the  more  noteworthy  as  he  wrote  in  an 
age  not  yet  liberated  from  the  influence  of  the  scholastics  and 
their  overloaded  citations.  His  object  is  to  give  pleasure  to  his 
readers  as  well  as  to  impart  instruction.  As  his  recent  biographer 
says  :  "  Er  will  seine  Leser  nicht  nur  belehren,  er  will  sie  zugleich 
unterhalten."1  He  mingles  illustrations  taken  from  the  Middle 
Ages  and  from  contemporary  history  with  those  culled  from 
antiquity  ;  and  here  and  there  he  relieves  the  seriousness  of  his 
disquisitions  by  interspersing  personal  anecdotes  and  autobio- 
graphical reflections.  Thus  he  was  perhaps  the  first  of  lawyers 
in  whose  writings  we  find  purity  and  elegance  of  diction,  and  that 
marked  personal  note,  that  indefinable  charm  which  characterizes 
the  cultured  humanist  and  the  true  artist. 

Alciati  as  Reformer. — Alciati  took  a  keen  interest  in  all  branches 
of  learning,  and  notably  in  such  as  were  ancillary  to  law,  e.g. 
history,  philology.  He  followed  with  delight  the  new  discoveries 
of  ancient  writings,  whether  of  a  purely  literary  or  technical 
character,  as,  for  example,  those  relating  to  medical  questions. 
To  the  literature  of  his  age  as  well  as  to  that  of  the  Middle  Ages, 
he  was  a  zealous  adherent.  He  had  a  wide  knowledge  of  Roman 
authors  in  general,  and  was  especially  attached  to  Cicero,  whom 
he  regarded  as  the  very  begetter  of  eloquence,  "parens  elo- 
quent iae  ";  like  Erasmus  he  cultivated  a  pure,  terse,  flexible 
Latin  style,  and,  like  Erasmus — though  unlike  so  many  other 
writers  of  the  time — he  refused  to  pay  homage  to  the  prevailing 
fetish  of  factitious  Ciceronianism.  What  was  a  rarer  acquisition, 

-  Mueller,  p.  111. 


ANDREA  ALCIATI  AND   HIS  PREDECESSORS  79 

especially  so  in  the  case  of  the  majority  of  preceding  and  con- 
temporary jurists,  he  possessed  an  excellent  knowledge  of  Greek, 
though  he  was  not,  of  course,  a  consummate  Hellenist  like 
Budaeus  ;  in  any  case  he  made  fruitful  use  of  his  acquaintance 
with  Greek  authors  and  texts  of  Romanistic  jurisprudence. 

He  was  one  of  the  leaders  of  the  humanist  movement,  and  he 
cherished  all  the  aspirations  and  made  all  the  high  claims  of  his 
illustrious  fellow-workers.  To  these  high  claims  regarding  the 
many-sided  knowledge  and  accomplishments  necessary  to  the 
making  of  a  sound  lawyer,  there  were  not  wanting  replies  and 
reproaches  of  opponents,  who  restricted  their  attention  to  the 
subject-matter  of  jurisprudence  proper  and  had  little  time  or 
aptitude  for  cultivating  classical  literature.  Thus  Albericus 
Gentilis  maintained  that  the  presumptuous  humanists  or  "  Alcia- 
tists  "  ("  Alciatei,"  as  he  called  them)  were  scarcely  entitled  to 
the  name  of  jurists  at  all,  and  that  jurists  could  get  on  well  enough 
without  devoting  themselves  to  Greek  and  Latin  letters.1  How- 
ever, Alciati  throughout  insisted  on  independence  and  culture 
as  against  the  shackles  of  blind  faith  and  tyrannous  authority. 
He  emphasized  that  conviction  based  on  right  and  adequate 
knowledge,  and  sound  judgment  founded  on  the  actual  materials 
concerned  (as  the  ultimate  data  from  which  valid  conclusions 
may  be  drawn),  are  of  greater  import  than  a  passive  acceptance 
of  the  conclusions  of  scholastic  exegesis,  and  still  more  so  than 
acquiescence  in  the  accumulated  opinions  of  commentators 
merely  repeating  each  other.2  Truth,  inviolable,  immutable,  is 
alone  the  all-compelling  authority.  Though  he  was  near  to  be- 
coming a  cardinal,  yet  he  denied  the  large  claims  of  the  pope,  and 
even  refused  to  accept  the  Bible  as  finally  decisive. 

The  new  method  introduced  in  the  sixteenth  century  into  the 
science  of  Roman  law  is  not  the  result  of  an  isolated  manifesta- 
tion, but  is  at  one  with  the  general  revolt  of  the  human  mind 
against  the  burdens  of  tradition  and  its  accompanying  abuses  ; 
it  is  part  of  the  gradual  efflorescence  of  the  human  intellect  in 
all  the  regions  of  thought  and  belief .  Thus  it  has  a  close  affinity 
with  the  religious  insurrection  of  Luther  and  Calvin,  with  the 
philosophic  doubt  of  Descartes,  with  the  scepticism  of  Rabelais 
and  Montaigne,  with  the  pioneer  work  of  scholars  like  Scaliger 
and  Lipsius,  with  the  general  literary  revolt  in  Europe,  with  the 

1  A.  Gentilis,  De  iuris  interpretibus  dialogi  sex  (Londiui,  1582) 

2  Of.  Opera,  iv.  col.  860. 


80  ANDREA  ALC1ATI  AND  HIS  PREDECESSORS 

efforts  to  reintroduce  classical  types  of  architecture,  and  with 
many  other  phenomena  of  a  like  tendency.  In  a  word,  it  indi- 
cates the  passing  away  from  medievalism  with  its  dogma  and 
aut  hority  and  stifled  indi viduality,  to  modernism  with  its  freedom, 
expansion  of  personality,  and  demand  for  the  actual  and  real. 

Already  in  the  first  of  his  published  writings,  the  Commentary 
on  the  last  three  books  of  the  Code,  Alciati  proclaims  defiantly 
in  his  prefatory  dedication  the  demands  of  the  new  method  in 
jurisprudence,  and  the  necessity  to  bring  it  into  line  with  human- 
ism. He  realizes  that  before  him  some  effort  had  here  or  there 
been  made  to  bring  about  an  emancipation  from  the  old  incubus 
by  appealing  to  the  Corpus  luris  and  taking  refuge  in  it.  But  no 
one  had  as  yet  clearly  indicated  the  desired  goal  and  cleared 
the  way  thereto.  And  so  Alciati,  though  scarcely  more  than  a 
youth,  comes  with  his  call  to  arms ;  he  exclaims  that  the  old 
traditions  are  going  and  must  go,  and  he  will  show  the  world 
how  to  establish  a  new  condition  of  things  ;  he  expects  opposition, 
he  imagines  the  subtle  retorts  of  the  old  doctors  and  the  noise 
of  those  who  would  demolish  with  their  invective  what  they  are 
too  stupid  to  understand  ;  he  will  not,  however,  turn  from  his 
purpose,  he  is  courageous  and  hopeful  in  his  enterprise.1  In 
this  undertaking  Alciati  was  supported  by  Zasius  in  Germany, 
and  Budaeus  in  France  ;  and  Erasmus  declares  (in  a  letter  to  Karl 
Sucquet)  that  they  were  the  three  who  were  instrumental  in 
remedying  the  lamentable  conditions  of  the  hitherto  existing 
jurisprudence,  by  pointing  out  the  corrupt  and  mutilated  charac- 
ter of  the  texts  and  restoring  to  them  their  original  form  and 
meaning.2 

Alciati  did  not  eliminate  from  his  consideration  canon  law, 
customary  and  local  law,  German,  Lombard,  French,  or  Italian  ; 
as  an  advocate  lie  had  frequent  occasion  to  refer  thereto.  But 
when  he  speaks  of  jurisprudence  he  means,  of  course,  Roman  law  ; 
and  in  his  view  it  would  be  the  highest  glory  of  a  modern  jurist 
to  grasp  it  and  expound  it  as  forcibly  and  acutely  as  a  Papinian 
or  a  iScaevola.  Times  and  seasons,  he  says,  come  and  go  ;  but 
the  Roman  system  remains  in  all  its  splendour  and  greatness,— 
OH  the  ancients  said,  it  is  a  work  of  the  eternal  gods.3  A  great 
jurist  is  only  a  priest  in  the  service  of  Justice.  The  theoretical 

1  Cf.  Opera,  iii.  col.  479-80. 

Erasmus,  Epislolae  (Lond.  1042),  col.  1262-63. 
*  Opera,  iv.  col.  849. 


ANDREA  ALCIATI  AND   HIS  PREDECESSORS  81 

work  of  explanation  and  construction  is  in  many  respects  of  greater 
importance  than  the  practical  work  of  the  advocate ;  theory 
represents  the  captain,  practice  the  men.  And  to  do  that  work 
sfficiently  it  is  indispensable  to  go  to  the  sources,  and  not  to  the 
glosses  and  labyrinthine  commentaries  of  the  glossators  and  the 
Bartolists  (though  sometimes  to  consult  Bartolus  himself  might 
prove  profitable)  ;l  in  order  rightly  to  interpret  a  lex  it  is  fatal 
both  to  one's  own  understanding  and  to  that  of  others  to  offer 
the  inextricable  maze  of  opinions  on  opinions  and  explanations 
of  explanations.2  At  best  the  system  of  exegesis  may  succeed 
in  elaborating  some  rules  and  formulas,  but  a  harmonious  unified 
system  can  never  result  therefrom.3  One  perusal  cf  the  Corpus 
luris  itself  is  far  more  profitable  than  a  whole  life  given  to  inter- 
pretationes,  repetitions,  and  disputationes.  What  would  Jus- 
binian  have  said  of  the  dialectical  proceedings  concerned,  as  they 
were,  more  with  words  than  with  things,  more  with  dogmatic 
asseverations  than  with  unprejudiced  searching  for  truth  ?4 
Return,  then,  to  the  method  of  Justinian  if  you  would  find  your 
way  out  of  the  existing  confusion.  And  again,  besides  going  to 
the  veritable  sources,  we  must  effect  a  constant  alliance  of  the 
study  of  law  with  that  of  other  relative  subjects,  so  that  the 
results  of  the  latter  will  help  to  explain  or  reinforce,  or  if  need  be 
modify,  the  conclusions  of  the  former.  On  account  of  the  unity 
of  knowledge  and  essential  correlation  of  its  branches,  the  sub- 
sidiary subjects  in  question  will  be  numerous  ;  but  some  are  of 
especial  importance,  e.g.  history,  philology,  literature  ("bonae 
Literae ").  And,  reciprocally,  sound  conceptions  of  law  will 
prove  an  invaluable  aid  to  the  attaining  of  a  fuller  and  more 
rational  understanding  of  each  of  these  subjects.  Hence  the 
philologists,  the  "grammatici "  who  confine  themselves  to  verbal 
constructions,  very  rarely  discern  the  right  meaning  of  legal 
passages,  and  the  fundamental  import  of  the  law  set  forth  ;5  thus 
Angelus  Politianus  was  once  laughed  at  by  Socinus  for  not  knowing 
the  real  meaning  of  "  suus  heres."6  As  to  the  glossators  and  com- 
mentators, Accursius,  Bartolus,  and  their  associates,  not  once 
did  they  even  sip  of  non- juristic  knowledge.7  True  jurispru- 
dence, indeed,  necessarily  embraces,  or  is  closely  related  to,  all 
other  sciences  :  "  Haec  ars  ceteras  omnes  in  se  continet,"  8  and  so 

1  Opera,  col.  868.  2  Ibid.,  col.  73  (Paradoxa,  iv.  prooemium). 

3  Ibid.,  col.  866.  *  Ibid.,  col.  860.  5  Ibid.,  col.  275. 

6  Ibid.,  col.  191.  7  Ibid.,  col.  753.  8  Ibid.,  col.  852. 

7 


82  ANDREA   ALCIATI   AND   HIS   PREDECESSORS 

is,  in  a  sense,  pre-eminent.  The  comparative  method,  therefore, 
of  Alciati  aims  at  revealing  the  indissoluble  connection  of  the 
Corpus  Juris  with  the  entire  ancient  culture,  by  making  syste- 
matic use  of  mutual  illustration  and  exemplification ;  and  the 
sound  application  of  this  method  consequently  demands  many- 
sided  knowledge.  The  exaction  of  such  high  qualifications  is 
perhaps  not  so  unreasonable  in  an  age  which  produced  men  of 
universal  genius  like  Leonardo  da  Vinci,  Leo  Baptista  Alberti, 
Michaelangelo.  As  to  the  history  of  Roman  law,  however,  Alciati 
t  bought  there  was  then  little  prospect  of  successful  results  ;  in  the 
earlier  period  more  particularly  only  suppositicns  and  conjectures 
are  possible  ;  for  that  part  of  the  subject  is  clouded  in  obscurity, 
and  what  there  is  of  it  is  but  a  feeble  shadow.1  He  was  but  little 
concerned  writh  pre-Justinian  sources,  and  scarcely  realized  how 
much  early  Roman  law  is  embodied  in  the  Corpus  Juris. 

In  conclusion  it  may  be  said  that  Alciati  certainly  did  not 
accomplish  as  much  as  his  methods  and  projects  promised.  He 
was  one  of  those — like  our  own  Coleridge,  for  example — who 
design  much,  but  leave  only  a  few  fragments — fragments,  however, 
dest  ined  to  prove  of  the  greatest  influence  and  a  vital  inspiration 
to  his  contemporaries  and  successors.  He  restored  texts,  showed 
how  they  were  to  be  interpreted,  from  what  point  of  view  they 
were  to  be  regarded,  how  they  were  to  be  related  to  the  life  and 
thought  of  the  time  which  brought  them  into  being.  No  doubt 
he  committed  mistakes,  some  of  them  the  errors  of  an  explorer, 
others  inherited  from  inveterate  tradition ;  but  his  fundamental 
intention,  namely,  the  establishment  of  a  rational  scientific 
method,  was  fulfilled.  He'  more  than  any  other  jurist  has  a  right 
to  the  title  of  founder  of  the  humanist  method  ;  to  him  is  due  the 
rise  of  the  great  IVench  school  of  jurisprudence  in  the  sixteenth 
century,  with,  on  the  one  hand,  systematizers  like  the  eminent 
Dniuuu,  and,  on  the  other,  humanist  investigators  and  restorers 
ike  Cujas,  the  real  juristic  coryphaeus  of  the  century. 

1  Ojwra,  col.  443  seq. 


\ 


JACQUES   CUJAS 


JACQUES  CUJAS 

Law  in  Prance  before  Cujas. — Already  in  the  eleventh  century 
the  wave  of  learning  and  culture  was  felt  in  France  as  well  as  in 
Italy.  The  curriculum  of  the  university  of  Paris  included  legal 
instruction  (that  is,  canon  law  which  however  contained  Roman 
elements),  as  well  as  theology  and  the  arts.  With  the  influence 
of  men  like  Abelard,  as  was  pointed  out  in  the  preceding  essay, 
Paris  became  the  leading  centre  of  scholasticism ;  and  the 
scholastic  method  and  spirit  at  once  had  a  great  effect  both  on 
the  study  of  jurisprudence  and  on  legal  practice.  Various  com- 
pilations were  made  of  the  usages  and  customs  of  France  ;  thus 
we  find  at  the  very  beginning  of  the  eleventh  century  a  collection 
entitled  Assises  de  Jerusalem.  Numerous  manuals  and  epitomes 
were  also  composed,  incorporating  a  large  body  of  Roman  law ; 
such  were  the  Decretum  and  Panormita  of  Ivo  of  Chartres,  the 
Exceptions  Petri,  the  Brachylogus  iuris  civilis,  and  Lo  Codi,  all 
of  which  have  previously  been  mentioned.1  Two  rival  schools 
of  law  contributed  much  to  the  advance  of  jurisprudence,  both 
native  and  Roman :  one  was  that  of  MontpeUier,  which  was 
greatly  indebted  to  Placentinus,  and  established  itself  as  the 
Leading  representative  of  law  teaching  in  the  "pays  de  droit 
ecrit,"  the  other  was  that  of  Orleans,  which  was  organized  by 
Philip  the  Fair,  and  became  the  authoritative  guide  for  legal 
exposition  in  the  "pays  de  droit  coutumier."  Besides,  under 
the  French  monarchy  jurisprudence  was  from  early  times  applied 
to  the  affairs  of  government  and  the  State.  Philip  Augustus 
(who  in  1190  established  royal  courts  of  justice  presided  over 
by  officers  designated  bailiffs  or  seneschals),  St.  Louis  (who  ex- 
tended the  organization  of  parlements  in  the  French  provinces). 

1  Many  observations  which  would  have  been  necessary  are  omitted  in  the 
present  essay,  because  its  subject-matter  is  meant  to  be  supplementary  to, 
and  not  a  repetition  of,  that  set  forth  in  the  study  of  Alciati.  The  reader  is 
once  and  for  all  referred  thereto. 

83 


84  JACQUES  CUJAS 

and  Philip  the  Fair  gathered  legists  round  them.  With  the 
gradual  development  of  Roman  doctrines,  the  influence  of  these 
lawyers  rapidly  increased ;  and  they  were  entrusted  by  their 
sovereigns  to  draw  up  collections  of  ordinance^— those  "Eta- 
blisscments"  which  were  destined  to  undermine  the  feudal 
regime,  and  to  restrain  the  advancing  power  of  the  papacy.  The 
enlargement  of  the  royal  power  and  the  spread  of  law  teaching 
gave  greater  importance  to  the  parlements,  whose  magistrates, 
being  able  jurisconsults,  decided  cases  in  accordance  with  the 
evidence  brought,  instead  of  by  the  obsolescent  trial  by  battle. 
The  Etablissements  de  Saint  Louis  (about  1270),  drawn  from  that 
monarch's  ordinances,  from  the  customs  of  Touraine-Anjou  and 
of  the  Orleanais,  and  also  from  the  Corpus  luris  of  Justinian, 
established  a  great  code  of  rules  of  civil  and  criminal  procedure, 
and  principles  formulated  from  a  large  variety  of  legal  decisions. 
In  1283  appeared  the  GmUume  de  Beauvosisis, compiled  by  Philippe 
de  Re" mi.  sire  de  Beaumanoir.  This  work  shows  what  a  great 
influence  Roman  law  exercised  on  the  usages  of  Northern  Prance, 
and  how  in  the  hands  of  the  judge  the  rules  of  the  ancient  juris- 
prudence often  triumphed  when  brought  into  conflict  with 
Germanic  conceptions.  At  about  the  same  time  were  pro- 
duced Durand's  Speculum  iuris  and  Foucaud's  two  works  on 
Roman  law,  viz.  Quaestiones  iuris  and  Recipiendarum  actionum 
rationes. 

At  the  beginning  of  the  fourteenth  century,  France  possessed 
an  original  school  of  Romanistic  legists,  of  whom  the  most 
prominent  were  Jacques  de  Revigny,  Pierre  de  Belleperche, 
Guillaume  de  Cun6o,  Petrus  Jacobi,  and  Johannes  Faber.  They 
were  professors  and  advocates  at  Orleans,  Montpellier,  or  Tou- 
louse, and  became  distinguished  in  Church  and  State.  Their 
writings  have  an  eminently  practical  character,  and  endeavoured 
to  impart  to  the  customary  institutions  and  political  organization 
of  their  time  a  new  vigour  and  vitality  by  ingrafting  therein 
principles  of  Roman  law.  This  aim  is  shown  more  particularly 
in  the  works  of  Faber — Breviarium  in  Codicem  and  Commentarius 
ad  Instituta.  Other  practical  manuals  were  issued,  like  G.  ciu 
Breuil'H  Stylus  parlamenti,  which  set  forth  the  usages  and  formulae 
incidental  to  the  procedure  of  the  Royal  Court  of  Justice.  In 
the  fifteenth  century  various  projects  were  set  on  foot  by 
Charles  VII..  Louis  XI.,  and  Charles  VIII.  Thus  Charles  VII. 
devoted  himself  to  the  reorganization  of  French  government, 


JACQUES  CUJAS  85 

issued  an  ordinance  (1453)  for  the  reform  of  justice,  and  ordered 
the  preparation  of  materials  for  a  code.  Similarly  Charles  VIII. 's 
ordinance  (1493)  provided  for  the  amendment  of  judicial  ad- 
ministration ;  and  in  his  reign  also  compilations  of  local  customs 
were  made.  In  the  meantime  the  Bartolist  current  was  gaining 
ground  in  France,  though  it  never  penetrated  as  deeply  as  it  had 
done  in  Italy.  The  French  doctors  were  never  addicted  to  the 
scholastic  subtleties  and  vagaries  as  much  as  the  Italians  were. 
As  a  recent  writer  says  :  "  L'esprit  fran9ais  est  trop  logique  pour 
accepter  sans  resistance  une  creation  aussi  batarde  que  celle 
des  Bartolistes." 1  Nevertheless,  in  the  decline  of  the  study  of 
jurisprudence  during  the  fifteenth  century,  the  influence  of  the 
Bartolists  reached  several  schools  in  France,  and  predominated 
till  the  following  century.  Thus  Forcadel,  the  rival  of  Cujas, 
owed  to  this  circumstance  his  favour  at  Toulouse.2 

The  Sixteenth- Century  Movement. — No  century  was  more 
blemished  than  the  sixteenth  ;  but  no  century  achieved  a  more 
glorious  distinction.  At  its  opening,  it  found  in  the  West  (ex- 
cluding Italy — as  was  shown  in  the  previous  essay)  practically 
a  medieval  world  ;  at  its  close  it  witnessed  a  definitive  trans- 
figuration. Modernism,  heralded  by  Renaissance  and  Reforma- 
tion, came  to  displace  once  and  for  all  old  beliefs,  old  institutions, 
the  old  attitude  to  life  and  thought.  The  universal,  more  or  less 
homogeneous  consciousness  of  the  West  developed  into  the 
particular,  individual  consciousness  of  States — each  working  out, 
on  its  own  lines,  its  own  polity,  its  vernacular  literature,  its 
national  religion,  its  native  art.  The  Teutonic  Renaissance  was 
inaugurated,  like  the  Latin,  by  an  insurrection  against  the  supre- 
macy of  scholastic  Aristotelianism ;  but  its  spirit  was  more 
democratic,  more  religious,  more  theological ;  its  bulwarks  were 
St.  Paul,  representing  Biblical  authority,  and  St.  Augustine, 
conducing  to  neo-Platonism,  mystic  philosophy.  As  to  the 
Latin  movement,  the  French  Renaissance  was  distinguished  from 
its  progenitor,  the  Italian,  in  that  it  was  more  specifically  educa- 
tional, literary,  and  juristic,  whilst  the  latter  was  more  philoso- 
phical.3 For  a  short  time,  however,  the  French  Renaissance 
had  assumed  a  distinctively  Italian  colour  ;  this  was  specially 

1  J.  Fiach,  Cujas,  les  Glossateurs  et  les  Bartolistes,  in  Nouvdle  revue  historigue 
de  droit  francais  et  etranger  (Paris,  1883),  vii.,  pp.  205-27,  at  p.  224. 

2  See  further  infra. 

3  Cf.  Rev.  A.  M.  Fairbairn,  Tendencies  of  European  Thought  in  the  Age  of 
the  Reformation,  in  Cambridge  Modern  History,  ii.  ch.  xix. 


86  JACQUES  CUJAS 

marked  in  the  second  quarter  of  the  century,  when  there  was  so 
great  an  influx  of  Italians  into  France  after  the  fall  of  Florence 
(1530),  and  the  marriage  of  Francis  I.'s  second  son  to  Catharine 
de'  Medici.  There  was  not  always  a  clear  line  of  demarcation 
between  the  Renaissance  and  the  Reformation ;  though  on  the 
whole  it  may  be  said  that  the  first  was  of  a  more  secular,  the 
second  of  a  more  religious  character.  But  in  France  the  Refor- 
mation never  became  an  entirely  national  movement.  The 
Catholics  constituted  the  great  majority  of  the  population,  and 
detested  the  Protestants  more  for  their  schismatic  and  separatist 
attitude  than  for  their  heretical  beliefs.  This  antagonism  brought 
about  over  thirty  years  of  religious  wars,  culminating  in  the 
massacre  of  St .  Bartholomew — wars  which  had  an  injurious  effect 
on  the  free  intellectual  work  of  scholars  and  jurists  (most  of  whom 
were  amongst  the  Reformers),  and  on  French  humanism  in 
general.1  France  had  just  before  then  contributed  a  great  deal 
to  the  classical  and  legal  erudition  of  Europe.  The  College  de 
France  was  supreme  in  classical  philology,  the  university  of 
Bourges  was  unrivalled  in  jurisprudence.  French  literature  had 
received  a  great  impulse  and  a  fecundating  force  from  humanism. 
There  were  eminent  professors  of  Greek  and  masters  cf  Latin 
who  continued  the  great  work  of  Budaeus  ;  e.g.  Jacques  Toussain 
(Tusanus),  a  favourite  pupil  of  the  latter,  and  Adrien  Turnebe 
(Turnebus),  who  issued  Greek  editions,  translations,  and  com- 
mentaries on  Latin  authors  ;  Denys  Lambin  (Lambinus);  whose 
Latin  editions  enjoyed  great  fame  ;  Jean  Dorat  (Auratus),  the 
Aeschylean  critic  and  inspirer  of  the  Pleiade  ;  Marc  Antoine 
Muret  (Muretus),  that  master  of  Latinity  who  struggled  against 
the  superstition  of  Ciceronianism  ;  Henri  Estienne  (Stephanus), 
who  issued  from  his  press  a  large  number  of  Greek  and  Latin 
editions  nearly  all  edited  by  him,  and  in  his  Thesaurus  Graeme 
Linguae  (1572)  bequeathed  a  rich  legacy  to  scholarship  ;  Jacques 
Amyot,  one  of  the  few  translators  of  genius,  and  an  inspirer  of 
the  French  spirit ;  Pierre  Pithou,  a  man  of  versatile  activity  ; 
Joseph  Scaliger,  the  greatest  name  in  the  history  of  French 
classical  learning  ;  and  finally  Isaac  Casaubon,  whose  aim  was 
"to  revive  the  picture  of  the  ancient  world."  To  these  names 
may  be  added  that  of  Pierre  de  la  Ramee  (Ramus),  whose  famous 
treatise  on  logic  (Dialecticae  Instituti&nes,  Paris,  1543,  translated 
into  French  1555)  was  a  reaction  against  Aristotelian  authority, 
1  See  in/ra,  under  life  of  Cujas. 


JACQUES   CUJAS  87 

and  was  welcomed  in  Protestant  universities  (with  the  notable 
exception  of  Oxford). 

As  to  humanist  jurisprudence,  though  -the  real  founder  was 
Alciati,  we  may  regard  as  a  pioneer  Pierre  de  1'Estoile  (Stella), 
who  began  to  lecture  at  Orleans  in  1512.  In  France  more  than 
elsewhere  was  systematic  opposition  manifested  to  the  subtleties 
and  dogmatic  methods  of  the  Bartolists,  and  to  the  bewildering 
accumulation  of  glosses  of  their  predecessors.  Though  the 
glossators  merited,  in  some  respects,  more  indulgence  than  their 
scholastic  successors,  men  of  the  Renaissance  like  Rabelais 
treated  them  all  alike  with  contempt.  Thus  Pantagruel  says  to 
the  doctors  of  Paris  :  "  Au  cas  que  leur  controverse  etait  patente 
et  facile  a  juger,  vous  Favez  obscurcie  par  sottes  et  deraisonnables 
raisons  et  ineptes  opinions  de  Accurse,  Balde,  Bartole,  de  Castro 
.  .  .  et  ces  aultres  vieulx  mastins  qui  jamais  n'entendirent  la 
moindre  loy  des  Pandectes,  et  n'estoyent  que  gros  veaulx  de 
disme,  ignorans  de  tout  ce  qui  est  necessaire  a  Pintelligence  des 
loix  ;  car  (comme  il  est  tout  certain),  ils  n'avoyent  cognoissance 
de  langue  ny  grecque,  ny  latine.  .  .  .'u  And  comparing  the 
glosses  of  the  Accursians  with  the  text  of  the  Digest  itself,  he 
observes  :  "  Au  monde  n'y  a  livres  tant  beaux,  tant  ornes,  tant 
elegants  comme  sont  les  textes  des  Pandectes,  mais  la  brodure 
d'iceux,  c'est  assavoir  la  glose  d'Accurse  est  tant  infame,  tant 
sale,  tant  punaise,  que  ce  n'est  qu'ordurc  et  vilenie."2  Rabelais 
demanded  that  jurisprudence  should  bo  reinforced  by  humanist 
culture ;  he,  like  the  others  of  the  new  school,  maintained  that 
philology,  history,  science  in  general  are  indispensable  to  a  true 
jurisconsult.  Similarly,  Douaren,  one  of  the  most  eminent  of 
the  humanist  jurists,  derided  the  Bartolists  for  their  barbarous 
language,  absence  of  method,  and  scholastic  procedure  ;  he  com- 
plained that  they  gave  themselves  entirely  to  logic,  chopping 
and  attacking  the  opinions  of  others  rather  than  to  seeking  the 
truth  in  the  sources  themselves.  Without  devotion  to  letter?, 
claimed  he,  no  one  could  become  either  a  jurist  or  a  statesman, 
but  only  a  cavilling  pettifogger.3  The  bad  Lathi  and  wretched 
style  of  the  post-glossators  were  attacked  by  formidable  critics 
and  consummate  masters  like  Muret,  who  said  their  compositions 
were  a  hotchpotch  ("farrago"),  a  confused  mass  ("acervus 
perturbatus  "),  a  vile  medley  of  barbarous,  foreign,  unheard-of 

1  Pantagrud  (1533),  ii.  c.  10.  2  Ibid.,  ii.  c.  5. 

3  Cf.  his  letter  to  Andre  Gaillard,  in  his  Opera  (Francofurti,  1592),  p.  1100. 


88  JACQUES   CUJAS 

expressions  ("foedissirna  barbararum,  peregrinarum,  inauditarum 
vocum  colluvio  "J.1  Other  notable  assailants  of  the  "  mos 
italicus  "  of  the  Bartolists  were,  besides  Cujas  himself,  E.  Baron,2 
F.  Hotman,3  and  Baudonin.4 

The  aim  of  the  new  French  school  of  Romanists  was,  in  the 
first  place,  to  restore,  by  means  of  every  collateral  aid  furnished 
by  a  thorough  and  comprehensive  humanist  culture,  the  true 
sources  and  texts  of  Roman  jurisprudence,  to  indicate  the  original 
significance  and  applicability  of  its  laws  ;  secondly,  to  effect  a 
synthesis  and  a  coherent  systematic  structure  of  these  re-estab- 
lished elements,  and  make  manifest  the  spirit  and  philosophy 
of  the  entire  body.  This  aim  was  not  only  part  of  the  general 
revolt  implied  in  the  Renaissance,  the  revival  of  classical  anti- 
quity, but  was  also  stimulated  by  the  widely  felt  desire  to  remedy 
the  abuses  of  judicial  administration  ;5  for  it  was  felt  that  a  more 
rational  knowledge  of  Roman  law  would  conduce  to  the  ameliora- 
tion of  existing  practice  by  introducing  classical  conceptions  and 
principles.  Noteworthy  appeals  on  this  ground  were  made  in 
France  by  Hotman  (Antitribonianus,  1567),  and  in  Germany  by 
that  great  reformer  and  accomplished  humanist,  Melanchthon 
(Oratio  de  legibus,  Haguenau,  1530),  and  by  Oldendorp  (Disjmtdtio 
forensis  de  iure  et  aequitate,  Cologne,  1541).  The  latter  em- 
phatically insists  that  the  reform  of  the  administration  of  justice 
must  begin  by  reforming  the  teaching  of  law. 

The  chief  French  representatives  of  the  humanist  method  of 
jurisprudence  issued  critical  editions  of  old  or  newly  discovered 
texts;  e.g.  D.  Godefroy  (Gothofredus,  1549-1622),  Corpus  iuris 
civilis;  J.  Godefroy  (1582-1652),  belongs  to  the  sixteenth-century 
school  more  by  the  nature  of  his  work  than  by  date,  Quatuor 
fontc.8  iuris  civilis  (ante- Justinian  texts) ;  J.  du  Tillet  (d.  1570) 
and  Cujas  (1522-1590),  Theodosian  Code;  P.  Pithou  (1539-1596), 
Lex  Dei,  and  the  post-Theodosian  novellae ;  F.  Pithou  (1544- 
1621 )  Julian's  Epitome  and  the  laws  of  the  Visigoths  ;  J.  du  Tillet, 

1  Oralio  de  doctori*  officio  deque  modo  iurisprudenliam  studendi.  His  orations 
were  published  in  157G. 

*  De  ratwne  dicendi  discendique  iuris  civilis  ad  studiosam  legum  iuventulem 
commonffaclio  (1546). 

*  lunHconsultus  sive  de  optimo  gencre  iuris  inter pretandi. 
De  optimi  iuris  docendi  discendique  rationc. 

Plach,  loc.  cit.,  p.  221,  n.  ( 1 ) :  "  La  procedure  etait  devenue  en  beaucoup 

un  vain  airaulacre  qui  no  servait  qu'a  etcrniser  les  proces,  a  en  rendre 

.on  arb.traire  ou  a!6atoire,  ot  le  juge  memo  instruit,  laborieux  et  in- 

se   reconnaitre  au  milieu  des  commentaires  amonceles 
ucpuiH  (Ic 


JACQUES  CUJAS  89 

Ulpian's  Regulae ;  A.  Bouchard,  Institutes  of  Gaius  and  the 
Sententiae  of  Paul ;  E.  Bonnefoi  (Bonefidius,  d.  1574),  Juris 
orientalis  I.  in;  Cujas  and  A.  Augustin,  the  Basilica;  other 
sources  of  Graeco-Roman  law  were  issued  by  Baudouin,  Labbe, 
Bosquet,  and  others.1  Then  there  were  other  eminent  French 
jurists  of  the  century  who  did  not  devote  themselves  entirely  to 
Roman  law ;  e.g.  Charles  Dumoulin  (1500-1566),  surnamed  by 
some  of  his  contemporaries  the  "French  Papinian  "  ;  F.  Hotman 
(1524-1590);  Douaren  (1509-1559);  Doneau  (1527-1591),  the 
great  systematizer  ;  Baudouin  (1520-1573),  eminent  theologian 
as  well  as  jurist ;  Ranconnet  (d.  1559) ;  Govea  (1505-1566) ; 
Connan  (1508-1551),  who  began  the  general  classification  con- 
tinued afterwards  by  Domat  and  other  systematizers  ;  B.  Brisson 
(1531-1591),  A.  Le  Conte  (d.  1586),  P.  Faber  (1540-1600), 
and  others.2  This  assembly  of  names  certainly  gives  France, 
with  regard  to  sixteenth-century  jurisprudence,  the  foremost 
place  in  the  world  ;3  and  in  this  magnificent  concourse  Cujas 
stands  out  supreme. 

Life  of  Cujas.4 — Jacques  Cujas  (Jacobus  Cujacius) — whose  real 
name  was  Cujaus,  which  was  changed  for  reasons  of  euphony — 
was  born,  the  son  of  a  fuller,  in  Toulouse,  1522.  He  first  studied 
law  in  his  native  town  under  Arnaud  Ferrier,  who  was  a  disciple 
of  Alciati,  and  who  subsequently  attained  high  distinction  as 
president  of  the  Parlement  of  Paris,  then  French  ambassador 
to  the  Council  of  Trent  and  to  Venice,  and  afterwards  as  chan- 
cellor to  the  King  of  Navarre.  Cujas,  unlike  Alciati,  was  for- 
tunate in  his  first  instructor  ;  indeed,  he  ever  after  regarded  him 
as  the  ablest  professor  he  had  known.  At  Toulouse  he  read  all 
the  known  expounders  of  law,  and  frequently  took  part  in  public 
disputations  with  his  fellow-pupils.  But  he  applied  himself  also 

1  Cf.  Brissaud,  op.  cit.,  vol.  i.,  p.  357  ;  A.  Tardif,  Histoire  des  sources  du 
droit  fran^ais  :  Origines  romaines  (Paris,  1890),  p.  467. 

2  Cf.  infra,  on  the  relation  between  Cujas  and  his  chief  contemporaries. 

3  Cf.  the  opinion  of  the  English  civilian,  Sir  Arthur  Duck,  De  usu  et  authori- 
tate  iuris  civilis  Bomanorum  (London,   1653),  1.  ii.  c.  5 :   "  lurisprudentia 
romana,  si  apud  alias  gentes  extincta  esset,  apud  solos  Gallos  repiriri  posset." 

*  An  adequate  life  of  Cujas  is  greatly  to  be  desired.  The  best  account, 
short  as  it  is,  is  still  that  of  Berriat  Saint-Prix,  Histoire  du  droit  romain,  suivie 
de  I'histoire  de  Cujas  (1821),  pp.  373-454,  and  notes,  pp.  455-611. — The  German 
translation  of  E.  Spangenberg,  Jacob  Cujas  und  seine  Zeitgenossen  (Leipzig, 
1822),  contains  a  few  additions  and  notes  of  not  very  great  consequence  ; 
it  is  mainly  useful  for  the  convenient  chronological  list  of  Cujas'  works. — 
Savigny's  brief  article  in  Themis,  iv.  (1822),  pp.  194-207,  gives  a  little  supple- 
mentary matter. 


90  JACQUES   CT7JAS 

to  the  ancient  languages,  espscially  Greek,  to  history,  rhetoric, 
philosophy,  ethics,  philology,  and  poetry.  In  1547  he  began  a 
private  course  of  lectures  on  the  Institutes  ;  and  this  venture  was 
so  successful  that  soon  the  sons  of  eminent  men  were  sent  to  him 
from  distant  regions.  Some  seven  years  later  he  left  Toulouse 
never  to  return,  because,  as  it  is  averred,  he  failed  in  his  applica- 
tion for  a  chair  of  Roman  law.  It  is  certain  that  he  was  a  candi- 
date, and  that  Forcadel,  his  Bartolist  opponent,  obtained  the 
professorship  in  1556.  But  it  is  doubtful  whether  Cujas  took 
part  in  the  actual  test  proposed  by  the  authorities,  as  the  records 
of  the  university  for  this  epoch  no  longer  exist.1  In  any  case 
Forcadel's  selection  was  influenced  by  the  fact  that  Toulouse 
was  still  a  stronghold  of  Bartolism,  and  that  the  majority  of  the 
students — who  had  a  voice  in  the  appointment — voted  for  him, 
owing  to  the  persuasions  of  Jean  Bodin  (an  adversary  of  Cujas), 
and  to  the  long  experience,  good  presence,  and  witty,  rhetorical 
speech  of  Forcadel.  Gravina  observes  that  in  preferring  the 
latter  to  Cujas  the  university  preferred  an  ape  to  a  man.  After 
the  departure  of  Cujas,  one  of  his  pupils,  Jean  Amariton,  published 
the  former's  notes  on  Ulpian,  and  dedicated  the  work  to  him. 

In  November,  1554,  Cujas  received  a  chair  at  the  neighbouring 
town,  Cahors,  in  succession  to  the  Portuguese  professor,  Antoine 
de  Govea,  who  had  spent  nearly  all  his  life  in  France,  and  estab- 
lished his  position  as  a  distinguished  Romanist.  About  six 
months  afterwards,  however,  Cujas  was  called  to  the  university 
of  Bourges  (then  pre-eminent  for  civil  law — in  Hotman's  phrase, 
"  le  grand  marche  de  la  science  ")  to  fill  the  chair  of  Baudouin, 
who  left  for  Germany  owing  to  his  religious  opinions.  This 
invitation  was  made  by  the  Duchess  of  Berry,  Marguerite  of 
France,  daughter  of  Francis  I.,  on  the  advice  of  her  chancellor, 
Michel  de  1'Hospital.  She  was,  like  her  father,  a  patron  of  art 
and  learning.  Bourges  then  possessed  several  distinguished  pro- 
fessors, e.g.  Lc  Contc,  a  pupil  of  Alciati  and  editor  of  the  Corpus 
luris,  Douaren,  and  Doneau,  a  great  representative  of  the 
historical  school.  The  two  latter,  soeing  in  Cujas  a  formidable 
rival,  created  all  kinds  of  difficulties  for  him,  and  in  his  absence 

I'apyro  Masson  in  his  Vie  de  Cujas,  written  in  the  year  of  Cujas'  death 
K)),  asserts  that  he  really  suffered  defeat  in  the  competition,  and  many 
H  repeated  this  statement.     This  was  denied  in  1671  by  Bernard  Medon, 
/utfoire  de  Maran,  who  maintained  that  the  report  was  not  in  accord- 
so  with  the  university  records,  which,  however,  he  did  not  quote.     Berriat 
nx  accepts  the  traditional  opinion.— For  other  references  to  this 
jontrovorey,  me  Brissaud,  op.  cit.,  i.,  p.  350  n  2 


JACQUES   CTJJAS  91 

instigated  the  students  against  him ;  at  their  instance  also 
Pulvaeus  afterwards  published  a  violent  satire  against  him,  to 
which  his  pupil  Antoine  Foquelin  of  Orleans  replied.  In  spite 
of  the  support  of  Le  Conte  and  the  sympathy  of  his  auditors 
(amongst  whom  were  pupils  like  Pierre  du  Faur  de  Saint-Jory 
(P.  Faber),  Loysel,  Pierre  Ayrault,  Frangois  Hague  au,  Nicolas 
Cisner,  and  Pierre  Pithou),  he  left  Bourges  in  August,  1557,  and 
in  November  was  called  to  Valence.  During  his  stay  at  Bourges 
he  had  begun  the  publication  of  the  great  works — Notes  on  the 
Institutes  and  on  Paul's  Sententiae,  Commentaries  on  certain 
titles  of  the  Digest,  and  the  Observations, — which  assured  him 
the  position  of  the  leading  jurist  of  the  day,  and  procured  him 
the  friendship  of  eminent  men  like  Etienne  Pasquier.  Several 
pupils  accompanied  him  to  Valence.  At  this  time  he  married 
the  daughter  of  a  doctor  of  Avignon.  He  soon  published  a  second 
edition  of  the  above  works,  and  issued  a  further  portion  of  the 
Commentaries  and  the  Observations,  of  which  the  former  was 
dedicated  to  Jean  de  Montluc,  Bishop  of  Valence,  whose  friend- 
ship he  enjoyed.  His  reputation  was  now  so  great  that  a  legist, 
M.  Vertranius  Maurus,  stated1  that  there  was  no  need  to  quote 
passages  from  the  writings  of  Cujas,  as  they  were  in  everybody's 
hands. 

In  June,  1559,  Douaren  died,  and  the  Duchess  of  Berry  recalled 
Cujas  to  Bourges,  where  he  was  generous  enough  to  pronounce 
a  eulogy  on  his  late  opponent.  During  the  next  few  years  further 
publications  appeared,  e.g.  his  commentaries  on  the  last  three 
books  of  the  Code,  on  the  title  "  De  verborum  obligationibus  " 
which  he  dedicated  to  Marguerite  and  to  1'Hospital.  When  the 
former  became  Duchess  of  Savoy,  she  and  her  husband  were 
desirous  of  restoring  to  the  university  of  Turin  its  former  renown  ; 
and  so,  on  the  death  of  Antoine  de  Govea  (whom  they  had  brought 
from  Grenoble),  they  persuaded  Cujas  to  accept  the  vacant  chair 
(September,  1566).  During  his  residence  in  Italy,  he  paid  visits 
to  various  universities  to  see  the  methods  of  teaching  and  to 
examine  manuscripts  ;  he  tried  unsuccessfully  to  obtain  the  loan 
of  the  famous  Florentine  manuscript  of  the  Digest.  It  appears 
that  Cujas  was  not  able  to  habituate  himself  to  the  climate  of 
Turin  or  to  Italian  manners  ;  hence  in  August,  1567,  he  returned 
to  Valence  university,  which  had  greatly  increased  in  importance 
by  its  union  with  the  university  of  Grenoble.  Very  soon  took 

1  De  jure  liberorum  (Ludguni,  1558),  c.  27. 


92  JACQUES   CTJJAS 

place  a  general  rising  of  Protestants,  and  Valence  was  seized  ; 
teaching  was  in  consequence  suspended  until  the  conclusion  of 
peace  in  the  following  year.  On  the  resumption  of  his  professional 
work,  his  fame  was  at  its  height,  and  his  lectures  were  attended 
by  large  numbers  of  pupils,  many  of  whom  came  from  distant 
places  abroad,  notwithstanding  the  political  and  religious  dis- 
turbances in  France.  Again  in  1  570  he  was  compelled  to  withdraw 
to  Lyons,  where  he  wrote  new  works  and  revised  some  of  the  old 
ones  for  new  editions.  He  now  received  invitations  from  several 
other  universities,  e.g.  Avignon,  Besan9on  and  Bourges,  but  after 
the  peace  of  St.  Germain  (in  July)  he  was  back  in  Valence.  His 
students  continued  to  increase  in  numbers,  and  amongst  them 
were  the  prince  of  scholars,  Joseph  Scaliger,  and  one  of  the  greatest 
of  French  historians,  Jacques  Auguste  de  Thou.  In  the  autumn 
of  1571  he  fell  ill,  but  none  the  less  continued  his  lectures,  and 
begged  the  indulgence  of  his  audience  when  he  was  carried  into 
the  lecture-room.  On  the  fateful  day  of  St.  Bartholomew 
(August  24,  1572)  he  saved  the  life  of  Scaliger,  and  of  his  colleague, 
E.  Bonnefoi.  Later  Charles  IX.  recognized  the  high  position  of 
Cujas  by  making  him  honorary  councillor  of  the  Parlement  of 
Grenoble  (May,  1573). 

In  June,  1575,  hoping  to  obtain  more  tranquillity,  he  proceeded 
to  Bourges,  which  was  then  almost  entirely  Catholic  and  was 
situated  in  a  peaceful  province.  But  he  was  not  more  fortunate 
there,  and  the  civil  dissension  compelled  him  to  remove  to  Paris. 
At  the  instance  of  the  procure  ur-general  of  the  King,  the  parle- 
mont,  by  a  decree  of  April  2,  1576,  suspended  in  Cujas'  favour  the 
ordinances  prohibiting  the  public  teaching  of  civil  law  in  the 
university,  and  even  authorized  him  to  confer  degrees  —  "  d'autant 
que  le  dit  Cujas  est,  comme  la  cour  sgait,  personnage  de  grande 
ct  singultere  doctrine  et  condition."1  Some  three  months 
lator,  on  the  restoration  of  peace,  he  went  back  to  Bourges, 
ami  never  left  it  again.  He  was  granted  a  pension  by  the  Due 
d'Alen^on. 

The  greater  part  of  the  rest  of  his  life  was  embittered  by  civil 

and  religious  disturbances,  as  well  as  by  grief  and  sadness  from 

In  1581  he  lost  his  wife  and  only  son,  and  for  a 

c  was  overwhelmed  with  grief.    He  said  in  a  letter  that  the 

Lship  of  Scaliger  stayed  his  tears  and  saved  him  from  a 


1CJ  (j   pirite,  La  factUte  de  droit  duns  I'universite  de  Paris,  p.  173.     (Re- 
o  by  Bmsaud,  op.  cit.,  i.,  p.  354.) 


JACQUES   CUJAS  93 

wretched  grave.  To  another  friend  he  wrote  that  he  was  pining 
to  see  him,  that  the  sight  of  him  would  help  to  remove  the  sadness 
which  was  bearing  him  down  in  his  loneliness.  At  this  time 
offers  reached  him  from  Italy.  Gregory  XIII.  himself  wrote  to 
him  offering  a  large  stipend  and  high  honours  if  he  accepted  a 
professorship  at  Bologna  ;  but  various  circumstances  induced  him 
to  remain  in  Bourges.  He  deeply  felt  the  need  of  domestic 
companionship  and  of  an  heir ;  and  so,  though  over  sixty  years 
old,  he  married  a  young  wife.  But  the  only  issue  was  a  daughter 
(born  in  1587).  The  following  year  he  went  to  Paris  to  ask  leave 
to  retire,  but  Henry  III.  refused.  The  last  two  years  of  his  life 
were  still  more  troubled.  After  the  assassination  of  the  King 
(August  1,  1589),  the  leaguers  proclaimed  King,  under  the  title 
of  Charles  X.,  the  Cardinal  de  Bourbon,  uncle  of  Henry  IV. 
Cujas  was  asked,  with  promises  of  magnificent  rewards,  to  write 
in  favour  of  the  Cardinal ;  the  promises  were  followed  by  threats, 
and  fanatics  in  Bourges  were  roused  against  him.  But  nothing, 
not  even  a  riot  in  which  he  nearly  lost  his  life,  could  shake  his 
refusal.  Civil  war  continued,  especially  in  Berry,  and  affected 
him  deeply  till  his  death,  which  took  place  on  October  4,  1590, 
and  was  followed  by  a  public  funeral. 

Like  Alciati,  Cujas  led  a  restless,  wandering  life  :  the  incessant 
disturbances  and  menacing  circumstances  of  the  time,  together 
with  the  intriguing  hostility  of  rival  professors  and  of  those 
adhering  to  the  older  schools,  made  it  impossible  for  him  to  enjoy 
peace  and  tranquillity.  This  kind  of  life  was  then  shared  by  many 
ardent  spirits  who  ventured  to  strike  out  new  paths  for  them- 
selves. Amongst  these  we  find — to  mention  only  legists  or  publi- 
cists— men  like  Dumoulin,  Baudouin,  Doneau,  and  Hotman. 
After  the  massacre  of  St.  Bartholomew,  the  position  of  professors 
in  France  who  were  suspected  of  heresy  or  of  sympathy  with  the 
reform  movement  became  still  more  intolerable.  Ramus,  as- 
sailed by  the  doctors  of  the  Sorbonne,  by  the  scholastic  contro- 
versialists, and,  after  he  turned  Protestant,  by  the  orthodox 
avengers,  perished  in  the  massacre.  The  classical  critic  and 
scholar,  Lambinus,  died  of  shock  almost  immediately  after. 
Scaliger,  like  Doneau  and  Hotman,  was  compelled  to  seek  a 
temporary  refuge  in  Geneva.  Cujas,  however,  did  not  assume 
such  an  uncompromising  cr  decisive  attitude  towards  religion. 
He  perhaps  belonged,  with  Erasmus  and  Montaigne,  to  that  party 
which  was  characterized  by  a  mild  scepticism  or  by  the  broadest 


94  JACQUES   CUJAS 

toleration,  and  detested  fanaticism  of  any  kind.  This  point  of 
view  was  not  due  to  lack  of  courage  or  vacillation  ;  when  necessity 
arose,  he  was  ready  to  risk  his  life  rather  than  surrender  his  con- 
victions to  the  seditious  clamours  of  a  threatening  crowd  of 
leaguers.  He  practised  Catholicism,  but  it  is  significant  that  in 
his  will  he  made  no  declaration  in  its  favour,  forbade  the  sale  of 
hia  books  to  the  Jesuits,  and  recommended  his  wife  and  daughter 
simply  to  abide  by  the  precepts  of  the  Holy  Scripture.  It  was 
thought  that  he  had  openly  embraced  the  reformed  faith,  for  we 
find  Hot  man  accusing  him  of  deserting  it  again.  However,  in  his 
discussions,  whenever  legal  matters  were  confronted  by  religious 
arguments,  he  was  wont  to  observe :  "  Nihil  hoc  ad  edictum 
praetoris,"  and  thus  constantly  emphasized  that  the  spheres  of 
law  and  religion  were  separate,  affirmed  the  secular  character  of 
jurisprudence,  and  declared  that  it  could  no  longer  be  the  humble 
servant  of  theology. 

Cujas  does  not  appear  to  have  possessed  a  marked  professorial 
aptitude,  in  so  far  as  secondary  accomplishments  are  concerned. 
It  is  said  that  in  his  lectures  his  exordium  was  too  precipitate, 
his  general  delivery  rather  rapid,  his  voice  unequal ;  that  he  did 
not  answer  immediately  ("ex  abrupto,"  as  Alexander  Scot,  one 
of  his  pupils,  says)  the  difficult  questions  put  to  him.  He  in- 
variably avoided  talking  law  at  table  or  when  he  was  in  the  society 
of  his  friends  ;  and  when  they  suggested  problems  to  him  he  re- 
ferred them  to  his  lectures.  There  is  no  doubt  that  he  lacked 
readiness  of  retort  and  rhetorical  flourish,  and  other  controversial 
attributes  which  were  then  so  much  appreciated ;  indeed,  he  seems 
to  have  had  a  deep  contempt  for  the  art  of  declamation,  and 
forcasic  eloquence  without  true  insight  and  deep  knowledge  he 
disdained  above  all.  He  carefully  prepared  his  public  discourses, 
which  were  always  characterized  by  lucid  expression,  exact  and 
pentrating  analysis.  Under  his  scrutiny,  backed  up  as  it  was  by 
scientific  method,  immense  erudition,  and  new  suggestive  ideas, 
the  most  obscure  passages  yielded  their  meaning.  He  always 
took  a  personal  interest  in  his  students,  and  they  were  attached 
to  him.  He  admitted  them  to  his  table  and  to  his  library,  and 
often  helped  them  pecuniarily.  Before  and  after  lectures 
they  formed  a  processicn  and  escorted  him  to  and  from  his 
Many  accompanied  him  in  his  frequent  peregrina- 
tions, and  when  they  left  him  still  [kept  up  the  most  friendly 
relations. 


JACQUES   CTJJAS  95 

Works1  and  their  Character. — The  works  of  Cujas,  like  those 
of  Alciati,  do  not  set  forth  an  elaborate,  systematic  account  of 
Roman  jurisprudence  as  a  whole.  The  time  was  not  yet  ripe 
for  such  an  undertaking.  But  Cujas,  more  than  any  other  single 
investigator,  contributed  to  the  realization  of  this  object.  His 
voluminous  publications — a  magnificent  array  of  mighty  tomes 
— were  nearly  all  devoted  to  the  exegetic  study  of  the  sources. 
The  most  important  of  these  writings  are  the  Commentaries  on 
Papinian  (issued  after  his  death),  and  above  all  the  Observationum 
et  emendationum  libri  XXVIII.,  which,  originally  designed  to 
extend  to  forty  books,  appeared  at  intervals  from  1556  to  his 
death,  except  the  last  four  books  posthumously  published  by 
Pithou.  The  latter  work,  described  by  eminent  Romanists 
like  Heineccius  as  an  "  opus  incomparable,"  and  "  opus  divinum," 
presents  with  but  little  order  a  rich  harvest  of  restorations  of 
texts  or  suggestive  conjectures,  of  corrections  and  interpretations. 
Other  writings,  representing  for  the  most  part  the  substance  of 
his  lectures,  like  the  Tractatus  ad  Africanum:  and  the  Eecitationes 
solhmnes  on  Paul,  Ulpian,  Modestinus,  Marcellus,  Julian.  Scaevola, 
and  others,  seek  to  re-establish  in  their  original  form  and  restore 
to  their  original  meaning  the  contributions  of  the  classical  juris- 
consults comprised  in  the  Justinian  compilations.  His  Paratitla 
on  the  Digest — a  small  book  which  his  opponent  Hotman  advised 
his  son  always  to  carry  about  with  him — offers  a  concise  exposition 
of  the  titles  of  that  collection.  He  also  issued  learned  and  con- 
siderably amended  editions  of  texts  which  had  before  been 
published  with  greater  or  lesser  defects,  and,  what  is  much  more 
noteworthy,  he  gave  to  the  world  for  the  first  time  numerous 
texts  based  on  collated  manuscripts,  which  he  searched  out  in 
every  promising  quarter.  In  addition  to  these  writings  on 
Roman  law,  we  find  in  his  volumes  a  few  inaugural  discourses, 
which  academic  duties  demanded  of  him,  two  polemical  compo- 
sitions (the  Notata  Antonii  Mercatoris,  i.e.  written  under  the 
pseudonym  of  "  Antonius  Mercator,"  and  the  defence  of  Bishop 
Montluc  against  the  attack  of  Doneau),  also  a  work  relating  to 

1  The  collected  works  were  edited  by  C.  A.  Fabrot — Opera  Omnia,  10  vols., 
folio  (Paris,  1658).  There  is  also  an  eleventh  volume  under  the  title  of 
Appendix,  which  contains,  besides  other  matter,  his  Notata  Antonii  Mercatorif. 
—The  editions  of  Naples  (1722-27)  and  Venice  (1758-83)  in  11  vols.  are  prac- 
tically mere  reprints ;  but  they  are  more  convenient  as  there  is  an  index  to 
them,  entitled  Promptuarhim  operum  Jac.  Cujacii,  2  vols.,  1763  (2nd  ed. 
1795). 


96  JACQUES  CUJAS 

feudal  law  (Treatise  on  Fiefs),  and  one  on  ecclesiastical  law  (a 
commentary  on  three  books  of  the  Decretals  of  Pope  Gregory  IX.). 
As  for  the  "important  constituents  of  French  national  law,  viz. 
customs,  royal  ordinances,  judgments  and  orders  of  the  parle- 
ments,  he  did  not  make  any  of  them  the  subject  of  a  separate 
work,  but  he  utilized  his  knowledge  of  them  in  the  illustrations 
and  comparisons  which  enrich  his  works,  and  necessarily  so  in 
his  professional  consultations. 

In  consideration  of  the  manuscripts  discovered  or  published  by 
Cujas,  he  occupies  the  foremost  place  in  the  history  of  Roman 
law.    His  zeal  in  the  search  of  these  documents  was  inexhaustible. 
To  procure  them  he  spared  no  toil,  no  expense.     One  of  the  chief 
reasons  for  his  going  to  Italy  was  to  examine  manuscripts.    In 
1571  he  made  a  journey  to  Provence  for  the  same  purpose.    In 
the  preceding  year  he  kept  several  persons  occupied  in  the  like 
quest ;  in  1572  he  obtained  the  services  of  a  friend  in  Italy  to 
make  investigations ;  in  1575  a  nobleman  came  expressly  from 
Padua  to  Bourges  with  a  collection  of  Sententiae  of  the  ancient 
jurisconsults.    All  this  indefatigable  enthusiasm  was  not  that 
of  a  bibliomaniac,  but  that  of  a  true  explorer  and  scholar  ;  he 
was  indeed  ever  ready  to  lend  his  precious  acquisitions  to  students 
who  might  desire  to  consult  them,  and  gave  some  to  friends  and 
publishers,  and  lost  many  which  had  been  temporarily  borrowed 
and  never  returned.1    It  appears  from  a  catalogue  drawn  up  by 
one  of  his  pupils,  about  1574,  that  there  were  some  two  hundred 
manuscripts  in  his  library  ;  and  according  to  a  later  list,  copied 
from  an  inventory  made  after  his  death  and  published  quite 
recently,2  there  were  actually  about  four  hundred.     And  these 
numerous  documents  of  his  own  were  but  a  small  part  of  those 
he  consulted  during  his  literary  labours.    The  greater  portion 
of  his  correspondence  is  concerned  with  this  subject.    The  manu- 
scripts of  which  he  took  cognizance  and  of  which  many  are  no 
longer  extant  related  to  the  three  periods  of  Roman  jurisprudence 
— ante-Justinian,  Justinian,  and  post- Justinian.    For  example, 
he  published  in  1566  the  Lex  Romana  Burgundionum,  probably 
after  a  manuscript  belonging  to  Pierre  Pithou,  but  he  was  mis- 
taken in  considering  it  the  work  of  a  jurist  named  Papian.8    He 

1  Of.  B.  Saint-Prix,  op.  cit.,  pp.  421-22. 

1  Cf.  M.  Omont,  in  Nouvelle  revue  historique  de  droit,  1885,  pp.  233-7  :  and 
18HH.  pp.  032-41. 

1  S«>  t  ho  t  it lo  of  his  odit  ion  of  1 580  :  Burgitndionis  iurisconsulti,  qui  Papiani 
ruponsornm  titulum  pracfert,  liber. 


JACQUES   CUJAS  97 

also  issued  for  the  first  time  the  Consultatio  veteris  iurisconsulli, 
after  a  manuscript  now  lost,  of  which  fragments  appeared  in 
1564  and  1566,  then  the  text  itself  in  1577,  and  more  completely 
in  1586.     This  was  prefixed  to  his  collection  of  sixty  consulta- 
tions ;  and  in  his  dedicatory  epistle  he  says  he  did  not  himself 
discover  the  manuscript,  but  that  his  knowledge  of  it  was  due 
to  Antoine  Loysel.    The  book  De  asse  et  pond&ribus,  attributed 
generally  to  Volusius  Moecianus,  a  jurisconsult  of  the  time  of 
Antoninus  Pius,  though  held  by  others  to  have  been  written 
after  the  Theodosian  Code  (438),  was  published  for  the  first  time 
by  Cujas  in  1586,  together  with  various  other  texts  of  ante- 
Justinian  law.    He  was  the  first  to  issue  Books  VI.  to  VIII.  of 
the  Theodosian  Code,  after  the  Charpin  manuscript ;  and  this 
work,  incomplete  though  it  was,  proved  of  great  assistance  to 
Jacques  Godefroy  in  the  preparation  of  his  superior  edition 
which  appeared,  several  years  after  his  death,  in  1665.    Modern 
students  are  indebted  to  him  for  numerous  portions  of  Paul's 
Sententiae  presented  (1585)  in  Book  XXI.  of  his  Observations, 
and  taken  from  the  Besan9on  manuscript.    Of  the  post- Justinian 
collections,  he  was  the  first  to  bring  to  light  many  books  of  the 
Basilica,  for  which  he  consulted  more  complete  manuscripts 
than  those  now  in  existence,  e.g.  those  which  were  in  the  library 
of  Catharine  de'  Medici,  and  others  acquired  by  himself  during 
his  stay  in  Italy.1     His  labours  were  afterwards  utilized  for  the 
great  edition  of  the  Basilica  published  by  Fabrot.    As  for  the 
Justinian  compilations  themselves,  he  did  much  towards  the 
restoration  of  the  Code ;  and  nearly  all  the  Greek  constitutions 
were  re-established  by  him  and  by  Antonius  Augustinius.    He 
also  revised,  by  collating  old  manuscripts,  the  text  of  the  Insti- 
tutes, and  brought  out  an  edition  in  1585.    Further,  in  many 
cases  Cujas  offered  encouragement  and  counsel  to  other  researchers 
in  their  handling  of  juristic  documents  :  thus  Julian's  Epitome 
(already  published  several  times  in  the  sixteenth  century)  was 
issued  by  the  brothers  Pithou,  by  his  advice  and  under  his  patron- 
age ;  and  Le  Conte's  edition  of  the  Novellae  was  revised  by  him. 
Finally,  he  sometimes  supplied  valuable  materials  even  for  non- 
legal  publications  :  thus  to  him  was  mainly  due  the  Latin  transla- 
tion of  the  letters  of  the  ancient  Greeks  found  in  the  library  of 
Pierre  Pithou,  and  published  at  Geneva,  1606. 

The  style  of  Cujas  is  marked  by  extreme  conciseness,  which 

1  Cf.  the  letter  of  Cujas,  dated  August  7, 1567,  to  be  found  in  Themis,  i.,  p.  94. 


98  JACQUES   CTTJAS 

makes  the  reading  of  his  works  difficult  to  all  but  students  of 
experience  ;  apart  from  this  striking  quality  we  find  an  elegance 
of  language,  a  clearness  of  expression,  and  rational  sequence 
in  the  argument,  backed  up  by  apt  citations,  comparisons,  and 
a  controlled  erudition,  all  of  which  combine  to  distinguish  his 
diction  and  his  whole  manner  from  the  dull,  heavy,  un-Roman 
Latin  of  the  majority  of  his  contemporaries,  especially  of  the 
jurists.  He  does  not  possess  the  power  of  felicitous  construction 
and  classical  propriety  of  a  Muret ;  but  his  prose  is  certainly  a 
very  effective  medium  for  conducting  critical  investigation  with 
force,  directness,  and  precision. 

Method  of  Cujas. — Alciati  was  the  principal  founder  of  the 
humanist  school  of  jurisprudence  ;  but  in  his  time  his  ideas  and 
methods  were  accepted  by  a  very  small  minority,  and  opposed 
by  a  multitude  of  formidable  adversaries  attached  to  old  ways 
and  conceptions.  With  the  coming  of  Cujas  the  new  method 
was  once  and  for  all  established,  opposition  was  gradually  over- 
come, and  unanimity  secured  amongst  most  of  the  enlightened 
and  unprejudiced  students.  The  course  of  the  new  school,  more 
or  less  undecided  before,  was  now  definitively  determined ;  its 
aim  was  marked  out  with  greater  precision.  Before,  the  Bartolist 
adherents  might  well  have  maintained  their  authority,  perhaps 
they  might  with  some  success  have  re-asserted  their  pre-emin- 
ence ;  now,  their  methods  were  shown  to  be  hopelessly  bad  and 
their  point  of  view  fallacious.  The  work  of  Cujas,  more  than  that 
of  any  other  jurist  of  the  time,  conduced  to  the  repudiation  of 
the  earlier  juristic  heritage,  and  brought  about  the  triumphant 
victory  of  the  historical  school.  As  a  humanist  he  was  well 
versed  in  the  classical  literature,  and  used  this  knowledge  with 
remarkable  efficacy  in  the  comparison  of  legal  and  historical 
texts  with  the  purely  literary.  He  laicized  the  study  of  law. 
He  liberated  it  from  the  custom  of  heaping  up  commentaries  on 
isolated  enactments,  and  from  that  of  spinning  out  scholastic 
subtleties  and  endless  artificial  distinctions.  Accursius  and  the 
glossators,  however,  he  held  in  far  less  disesteem  than  Bartolus 
and  the  commentators  with  their  futile  "  fictions  and  ill  imagin- 
ings."1 Of  the  latter  he  tersely — and  truly — observes:  "  Verbosi 
in  re  facili,  in  difficili  muti,  in  angusta  diffusi  "2  whilst  Accursius 

1  Observationum,  xii.  c.  1(5 :  "...  Accursium  longe  magis  corona  donaverim, 
a  quo  quidquid  aberrat  Barlolus,  vanao  fictioncs  ct  aogri  soninia  videntur." 

2  Respons.  Papin.,  lib.  v.  leg.  17  (De  iniuslo  rupto). 


JACQUES   CUJAS  99 

he  places  high  amongst  juristic  interpreters.1  His  main  reason 
for  holding  the  glossators  in  higher  favour  is  that  they  had  made 
an  effort  to  examine  the  texts.  He  incessantly  urged  his  students 
to  study  the  sources,  rather  than  the  verbose  and  obscure  com- 
mentaries of  the  doctors.2  Similarly,  in  his  endeavours  to  make 
of  law  a  rational  science,  he  assailed  the  ignorant  practitioners 
and  their  accredited  decisions  in  the  courts — decisions  based  on 
prejudice,  personal  considerations,  narrow  views,  erroneous  con- 
ceptions, shifting  fundamentals.  No  doubt  he  held  theory  in 
higher  regard  than  practice — and  necessarily  so,  in  view  of  the 
nature  of  his  work  and  the  circumstances  of  the  time  ;  but  he  by 
no  means  despised  practice,  as  his  consultations  show.3  As  to 
his  immediate  predecessor  Alciati,  whilst  recognizing  the  indis- 
putable merit  of  the  Italian  jurist  in  having  been  the  first  to  apply 
systematically  the  historical  and  comparative  method  to  juristic 
investigations,  Cujas  none  the  less  holds  that  he  was  only  a 
madiocre  interpreter,  inexact  in  his  citations,  incomplete  and 
superficial  in  his  exegetic  expositions.4 

The  method  of  Cujas,  then,  is  comparative,  critical,  historical. 
The  constituent  elements  of  Roman  jurisprudence — as  repre- 
sented, for  example,  in  the  Justinian  compilation — are  derived 
from  various  sources  which  were  afterwards  lost ;  and  the  only 
guidance  we  have  as  to  its  intrinsic  composition  is  solely  an 
indication  of  the  place  those  elements  occupied  in  the  original 
works.  Hence  the  study  of  the  ancient  civil  law  may  be  ap- 
proached in  three  ways  :  firstly,  by  accepting  the  classification 
so  found,  making  the  best  of  it,  and  pointing  out  how  discovered 
defects  might  have  been  avoided  by  a  prior  modification  of  the 
plan  ;  or  secondly,  by  disregarding  the  original  sequence  of  the 
subject-matter,  and  substituting  therefor  an  arbitrary  order, 
more  general,  coherent,  and  logical ;  or  thirdly,  by  restoring,  as 
far  as  is  possible,  the  indicated  sources  in  the  light  of  every 
suggestion  obtained  from  the  original  materials,  and  by  the  aid 
of  conceptions  and  results  furnished  by  cognate  subjects.  The 
first  method  of  procedure  would  give  best  the  legislation  of 
Justinian  in  its  purely  juridical  aspect ;  the  second  is  more  in 
accordance  with  the  exigencies  of  universal  reason,  and  would 

1  Observat.  iii.  c.  11  :  "  Accursius  noster,  quern  ego  el  Latiiiis  ot  Graocis 
omnibus  interpretibus  iuris  facile  antepono.  .  .  ." 

2  Oratio  de  ratione  docendi  iuris. 

3  See,  for  example,  his  23rd  consultation. 
*  Cf.  Notata  Antonii  Mercatoris,  ii.  c.  29. 


100  JACQUES   CUJAS 

present  the  legislative  product  in  its  philosophical  significance ; 
the  third  is  the  historic  method,  and  would  set  forth,  with  regard 
to  time,  place,  and  circumstance,  the  intrinsic  sense  and  relative 
force  of  the  respective  elements  composing  the  whole.  This 
latter  method  was  that  of  Cujas  and  the  new  school.1  In  his 
hands,  therefore,  the  Corpus  Juris  was  not  treated  as  a  homo- 
geneous body  of  laws  (for  such  it  had  been  frequently  assumed 
before  him),  but  a  complex  mass  which  could  not  well  be  under- 
stood without  decomposing  it  again  and  examining  all  its  parts. 
It  was  his  bold  design  to  re-create  what  Tribonian,  that  versatile 
and  remarkable  minister  of  Justinian,  had  altered  or  consigned 
to  oblivion,  to  restore  the  purity  of  Roman  traditions  which  had 
been  adulterated  by  the  pretentious  barbarism  of  Byzantium, 
to  resuscitate  the  work  of  the  classical  jurisconsults  by  uniting 
scattered  fragments,  to  set  forth  the  very  principles  of  Roman 
jurisprudence  as  they  had  been  in  the  minds  of  those  who  con- 
ceived them,  to  show  the  magnificent  Roman  heritage  in  its  most 
favourable,  that  is,  in  its  true,  light.  Cujas  brought  to  bear  on 
his  work  the  disinterested  judicial  view  of  an  historian,  the 
imagination  of  a  creative  artist,  and  the  exact  learning  of  a 
scholar.  Whenever  he  proposed  a  new  interpretation  he  did  not 
fail  to  refute  or  criticize  the  one  previously  accepted ;  and  he 
showed  that  his  method,  applied  by  one  who  possessed  a  mastery 
over  details  and  a  dispassionate  judgment,  would  demolish  the 
false  and  confirm  the  true.  In  pursuance  of  his  design  he  inquired 
into  and  annotated  the  Regulae  of  Ulpian,  the  Sententiae  of 
Paul ;  he  wrote  a  commentary  on  Africanus  ;  and  restored  the 
work  of  Papinian,  that  profound  legal  genius  and  victim  of 
Caracalla.  This  supreme  jurist's  works  had  reached  us  only  in 
mutilated  fragments ;  but  Cujas  applied  himself  to  these  sacred 
remains,  and  with  diligence  and  penetration  brought  them  to 
life,  and  extracted  their  secret,  hitherto  unascertained.  In  the 
fragments  of  the  contributors  to  the  Justinian  compilation,  he 
saw  more  than  groups  of  legal  dispositions  conceived  in  a  re- 
stricted sense  and  adopted  fortuitously  ;  he  recognized  that  these 
colourless  fragments  represented  a  certain  crystallization  of  the 
past,  and  in  his  handling  of  them  the  past  was  made  to  live  again. 
He  took  the  isolated  texts,  restored  them  with  felicitous  effect, 
replaced  them  in  the  work  of  the  respective  jurisconsults,  set  the 

1  Cf.  L.  Cubantoua,  in  Revue  de  legislation  et  de  jurisprudence  (Paris),  x., 
(1839),  pp.  32  «eg. 


JACQUES   CUJAS  101 

latter  in  their  respective  schools,  and  the  schools  in  their  particular 
epochs.  It  is  noteworthy  that  the  great  Romanists  of  the  seven- 
teenth and  even  of  the  eighteenth  century  did  not  adopt  this 
exacting  method ;  thus  jurists  like  Vinnius,  Voet,  Heineccius, 
Pothier  generally  adhered  to  the  defective  order  of  the  various 
compilations  of  Justinian,  and  others  like  Domat  adopted,  in 
conformity  with  the  project  of  Leibnitz,  a  somewhat  arbitrary 
classification  based  on  ideas  foreign  to  the  classical  jurisconsults. 

Before  the  sixteenth  century  attempts  were  made  to  explain 
texts,  but  legal  interpretation,  ill-proportioned,  unsystematic  as 
it  was,  had  not  yet  risen  to  the  dignity  of  a  science,  which  neces- 
sarily implies  a  complete  methodical  body  of  doctrines  embracing 
facts  classified  according  to  certain  determinate  principles,  which 
are  controlled  by  constant  reference  to  these  facts,  and  which 
govern  the  doctrines  set  forth.  By  consistently  applying  philo- 
logy, history,  antiquarian  lore  to  the  examination  of  texts, 
Cujas  founded  a  method  which  proved  an  instrument  of  the 
greatest  efficiency,  and  from  which  posterity  has  derived  the  most 
fruitful  results.  It  was  not  his  aim,  however,  to  create  a  general 
systematic  structure  of  the  entire  body  of  Roman  jurisprudence  ; 
such  exposition  was  reserved  for  successors,  who  were  able  to 
benefit  by  his  pioneer  work.  His  genius  was  essentially  critical, 
analytic  ;  he  did  not  possess  in  an  equal  degree  that  philosophical 
power  which  enables  one  to  generalize  on  broad  lines,  and  co- 
ordinate separate  parts — the  results  of  analytic  investigation — 
into  an  all-comprehensive  unity. 

To  conclude  this  brief  statement  of  Cujas'  method  and  point 
of  view,  it  will  perhaps  be  of  interest  to  give  one  or  two  of  his 
specific  opinions  on  the  different  parts  of  Justinian's  compilation, 
and  on  various  legal  manuscripts  and  editions.  He  appears  to 
have  approved  of  the  general  plan  and  structure  of  the  Institutes  ; 
he  thought  it  was  unnecessary  to  make  long  commentaries  on 
the  work,  that  it  was  best  to  confine  oneself  to  such  brief  notes 
as  would  effect  a  restoration  of  the  passages  altered  by  time  or 
by  the  carelessness  of  the  copyists  and  publishers,  and  that  the 
best  way  to  study  it  is  by  a  comparison  with  the  paraphrase  of 
Theophilus.1  With  regard  to  the  relation  of  the  Institutes  to 
the  other  portions  of  the  Justinian  law,  he  observes  that  many 
passages  of  the  Digest  and  the  Code  can  be  cleared  up  by  the 
application  of  facts,  dispositions,  and  principles  enunciated  in 

1  Observat.txi.  c.  34. 


102  JACQUES  CUJAS 

the  former,  and  supports  his  contention  by  giving  a  large  number 
of  examples.1  He  prefers  the  Greek  text  of  the  Novels  to  the 
Latin  translation  known  as  Vidgata  or  Authentica,  but  favours 
this  translation  more  than  those  published  in  his  day  by  G.  Meltzer 
(Haloander,  1501-31)  and  others  —  perhaps  because  the  earlier 
version  is  more  literal  and  was  the  one  used  by  the  glossators 
and  accepted  in  the  courts.2  The  Novels  of  Leo  he  refers  to 
merely  to  throw  light  on  the  obscure  passages  of  the  Digest, 
Code  ,  or  Institutes  .  In  the  fine  edition  of  the  Florentine  Pandect  s 
by  Taurellus  (1553),  Cujas  detected  various  matters  which  needed 
emendation,  though  he  recognized  the  high  merit  of  the  work  ; 
he  was  anxious  to  make  good  the  defects,  but  he  failed  to  obtain 
the  loan  of  the  jealously  guarded  manuscripts.  He  maintained 
—  and  his  view  is  shared  by  Savigny  —  that  amongst  the  existing 
manuscripts  of  the  Digest  several  are  copies  of  earlier  manuscripts 
other  than  the  Florentine,  and  that  all  ought  to  be  collated  and 
examined  with  a  view  to  establishing  the  best  text  ;3  and  in  con- 
formity with  this  opinion  he  effected  large  restorations,  especially 
in  the  last  ten  laws  of  the  title  "  De  interdictis  et  relegatis  "  which 
were  wanting  in  the  Florentine  manuscript.4 

Relation  of  Cujas  to  his  Contemporaries.  —  Some  of  the  dis- 
tinguished pupils  and  contemporaries  of  Cujas  have  already  been 
mentioned  above  ;  and  some  of  the  Romanists  and  other  jurists 
belonging  to  his  school  have  been  indicated.  To  the  latter 
may  be  added  the  German  legist  and  philologist,  Hubertus  Gi- 
phanius  (Giffen,  1534-1616).  and,  in  the  Netherlands,  Viglius 
Zuichemus  (1507-1577),  the  first  editor  of  the  paraphrase  of 
Theophilus.  In  some  quarters  the  methods  of  Cujas  met  with 
strong  opposition  —  for  it  is  to  be  remembered  that  the  Roman  law 
found  a  hardy  opponent  in  the  customary  law,  which  had  power- 
ful adherents  and  advocates.  The  old  maxim,  "coutume  passe 
droit  "  (i.e.  Roman  law),  was  often  emphasized.  Indeed,  in  the 
university  of  Paris  the  teaching  of  the  civil  law  had  by  ordinance 
been  for  a  considerable  time  forbidden,  and,  as  we  have  seen, 
it  was  partially  revived  by  way  of  a  special  favour  to  Cujas. 
Among  his  notable  adversaries  were  his  own  countrymen,  Douaren 
and  Doneau,  Dumoulin  and  Hotman.  The  vigorous  controversies 
that  took  place  show  the  novelty  of  Cujas'  doctrine  and  their 
historical  significance. 


1  Obtervat.  xi.  c.  38.  2  IUd^  viii.  c.  40< 

Ibid.,  i.  c.  1  ;  ii.  c.  1.  4  Opera,  vol.  x.,  p.  286. 


JACQUES   CUJAS  103 

Frangois  Douaren  (Duarenus),  a  pupil  of  Alciati,  was  born  in 
1509  and  died  in  1559  at  Bourges,  where  he  had  been  a  professor, 
after  having  practised  at  the  bar  and  manifested  much  hostility 
to  Cujas.  He  had  also  conflicts  with  Baudouin  and  Baron. 
Like  his  master  Alciati,  he  united  the  study  of  letters  to  that  of 
law.  His  works,  the  chief  of  which  is  the  Commentary  on  the 
Digest,  are  written  in  an  elegant  classical  style,  and  were  highly 
esteemed  by  his  great  rival.  He  attached  greater  importance, 
than  Cujas  did,  to  forensic  practice  :  his  poignant  criticism  of 
the  Bartolists  and  their  methods  has  already  been  referred  to. 
He  was  among  the  first  to  purge  legal  science  from  the  barbarous 
importations  of  predecessors.  He  had  associated  himself  to 
Calvin,  and  his  De  sacris  ministeriis  breathes  a  spirit  of  religious 
liberty. 

Hugues  Doneau  (Donellus,  1527-1591),  a  pupil  of  the  preced- 
ing, was  first  a  professor  at  Bourges,  then,  on  account  of  his 
religious  opinions,  fled  from  France  in  disguise,  and  resided 
successively  at  Geneva,  Heidelberg,  Leyden,  and  finally  at  Altdorf , 
where  he  died.  He  was  the  most  eminent  constructive  jurist 
of  the  century.  Unlike  Cujas,  he  did  not  inquire  into  the  historical 
connection  of  laws,  and  search  out  what  the  Roman  jurisconsults 
and  legislators  meant  when  the  laws  were  first  propounded ;  for 
him  the  question  was  the  actual  significance  of  the  texts,  and  what 
they  implied  when  they  were  incorporated  into  the  compilation 
of  Justinian.  Thus  Doneau  was  more  strictly  a  lawyer,  whereas 
Cujas  was  also,  and  deliberately  so,  a  historian.  For  Doneau 
Roman  law  was  only  law,  a  constant  guide  in  civil  and  political 
society ;  for  Cujas  it  was  also  a  precious  fragment  of  antiquity. 
For  Doneau  it  was  to  be  handled  systematically,  geometrically, 
as  a  finished  product ;  for  Cujas  it  was  to  be  treated  comparatively, 
as  a  changing  organism.  And  so  Doneau  presented  a  dogmatic 
treatise,  Cujas  produced  commentaries,  annotations,  purged  texts. 
Doneau  rehandled  the  subject-matter  of  this  or  that  title,  set  it 
forth  in  a  new  order,  and  bound  together  the  diverse  elements. 
He  systematically  advanced  definitions,  laid  down  principles,  and 
logically  deduced  conclusions.  In  this  syllogistic  procedure  he 
sometimes  resorted  to  the  dialectic  artifices  and  scholastic  dis- 
tinctions, and  was  particularly  fond  of  using  the  dilemma.  He 
was,  however,  a  humanist  and  not  a  Bartolist.  In  his  style, 
markedly  inferior  to  that  of  Cujas,  he  preferred  simplicity  to 
elegance  ;  and  he  condemned  that  excessive  conciseness  of  seme 


104  JACQUES    CTJJAS 

jurists  which  was  often  productive  of  obscurity.  In  Germany 
above  all  his  methodical  exposition  of  Roman  law,  the  Com- 
mentarii  iuris  civilis,  acquired  a  great  reputation,  and  became 
the  model  for  numerous  treatises  of  the  same  character. 

Fran$ois  Hotman  (Hotomannus,  born  in  Paris,  1524,  died  in 
Basle,  1590),  whose  father,  Pierre,  was  councillor  in  the  Parlement 
of  Paris,  studied  law  in  Orleans,  then  practised  at  the  bar,  and 
afterwards  lectured  in  Paris.  He  became  a  Protestant,  fled  to 
Switzerland,  taught  at  Lausanne,  then  (1555)  at  Strasburg, 
where  he  found  Baudouin  exiled  also  for  religious  reasons.  He 
soon  acquired  a  great  reputation,  obtained  help  from  Germany 
for  his  French  co-religionists,  returned  to  his  country,  taught  at 
Valence  (1563-6),  then  replaced  Cujas  at  Bourges.  The  massacre 
of  St.  Bartholomew  finally  drove  him  (like  Doneau)  from  his 
country.  Henceforth  he  remained  in  Switzerland,  and  died  at 
Basle,  overwhelmed  with  sickness  and  misery,  but  to  the  last  full 
of  fortitude.  Hotman  applied  to  the  study  of  law  not  so  much 
history  proper  as  archaeology  and  philosophy.1  He  was  mainly 
concerned  with  interpretation,  and  adduced  examples  from 
classical  authors.  He  made  no  attempt  at  generalization,  or  at 
constructing  a  systematic  treatise.  Apart  from  works  on  Roman 
jurisprudence,  he  wrote  on  feudal  law,  and  on  the  public  law 
of  France,  e.g.  De  iure  regni  Franciae,  and  Franco-Oallia,  in  the 
latter  of  which  he  discussed  the  ancient  constitution  of  France, 
and  was  among  the  first  to  insist  on  the  idea  of  the  sovereignty 
of  nations.  In  his  Antitribonian,  published  in  French  (1567),  he 
pleaded  for  unity  of  legislation  and  for  a  union  of  practice — 
which  had  been  to  some  extent  hindered  by  the  antagonism 
between  the  Bartolists  and  the  humanists2 — with  the  historical 
and  synthetic  treatment  of  law.  He  showed  that  the  new  direc- 
tion taken  by  the  study  of  Roman  law  must  result  in  the  revision 
of  French  national  law.  He  demanded  a  code,  which  was  to 
embody  the  most  valuable  portions  of  the  Roman  jurisprudence, 
and  whatever  was  found  good  in  other  sources ;  and  he  insisted 
on  the  claims  of  the  vernacular  language  as  a  medium  for  legal 
publication.  Unlike  Cujas,  he  was  not  an  ardent  worshipper 
of  the  ancient  legal  system  ;  he  even  doubted  if  its  study  in 
France  would  be  productive  of  good. 

Francois  Baudouin  (Balduinus,  born  at  Arras,  1520,  died  1573), 

1  Cf.  his  fnst  Hut  tones  dialrclicae  ex  fontibus  pJiilosophorum. 
Antitribonian,  c.  xv. 


JACQUES   CUJAS  105 

after  studying  at  Louvain,  became  secretary  to  Doumoulin, 
gave  a  free  course  of  lectures  in  Paris  (1546),  and  then  was 
professor  successively  at  Bourges,  Strasburg,  Heidelberg,  Paris, 
Angers.  He  was  a  friend  of  Calvin  and  Bucer  ;  but  he  does  not 
seem  to  have  definitely  embraced  Protestantism.  He  practised 
Catholicism  in  France,  Lutheranism  in  Germany,  and  Calvinism 
in  Switzerland,  and  finally  retracted  his  heterodox  opinions. 
Just  as  Cujas  refused  to  defend  the  conduct  of  the  leaguers,  so 
Baudouin  refused  to  justify  the  French  Court  for  the  massacre 
of  St.  Bartholomew.  Like  Cujas,  he  was  for  tolerance  and  indi- 
vidual liberty  of  conscience  as  against  outward  form  and  symbol, 
and  repudiated  extreme  violence  and  schism.  He  belongs  to 
the  historical  school  of  law,  and  emphasized  the  importance  of 
history  as  vigorously  as  Cujas  did  :  jurisprudence,  he  said,  is 
blind  without  history  ("Sine  historia  caecam  esse  iurispruden- 
tiam").  Unlike  Cujas,  however,  he  often  concerned  himself 
with  historical  disquisition  as  an  end,  and  not  as  ancillary  to  the 
development  of  legal  doctrine.  Thus,  he  usually  chose  such 
subjects  as  lent  themselves  best  to  historical  treatment.  He 
tried  to  trace  the  orgin  of  Roman  law.  In  his  account  of  the 
Twelve  Tables  he  constantly  asked  himself  why  the  provisions 
were  conceived  in  this  sense  rather  than  in  that.  When  he  took 
up  the  Novels  of  Justinian  it  was  only  to  discuss  the  modifications 
therein  introduced  by  the  legislator,  and  how  these  were  de- 
manded by  the  changing  circumstances  of  the  time.1 

Charles  Dumoulin  (born  in  Paris,  1500,  died  there  1566)  studied 
law  at  Orleans  and  Poitiers,  then  went  to  the  bar  in  Paris,  but 
was  not  successful.  He  embraced  Calvinism  ;  and  owing  to  civil 
dissensions  was  obliged  to  leave  Paris,  and  then  taught  law  at 
Strasburg  and  Besanson.  He  returned  to  his  native  town  in 
1557.  Like  most  of  the  jurists,  he  proved  himself  an  able  religious 
controversialist.  He  published  violent  treatises  against  papal 
authority.  He  appealed  to  jurisprudence  as  a  palliation  in  the 
incessant  theological  and  political  disputes  of  the  time.  He 
insisted  on  a  combination  of  law  with  public  affairs  and  forensic 
practice.  He  had  a  leaning  towards  the  Bartolist  methods,  and 
seems  to  have  had  some  esteem  for  Forcadel,  the  inept  rival  of 
Cujas  and  facetious  "adorer  of  Bartolus.  Besides  his  notable 

1  Of.  his  Scaevola  sen  lurisprudentia  Muciana  ;  De  institutions  liistoriae 
universalis  et  eius  cum  iurisprudentia  coniunctione,  etc.  (These  and  others 
are  to  be  found  in  the  collection  of  Heineccius,  Iurisprudentia  romana  et 
attica,  vol.  i.,  Leyden,  1738.) 


106  JACQUES  CUJAS 

work  on  the  customary  law  of  Paris,  he  wrote  on  feudal  law 
(Defeudis)  and  on  other  subjects.  His  works  show  ample  learning 
and  dialectic  subtlety,  but  are  written  in  a  difficult  and  unpleasant 
style.  He  brought  together  and  investigated  a  large  body  of 
French  customs  and  usages,  indicated  a  basis  for  more  unified 
and  consistent  French  legislation,  and  declared  himself  an  enemy 
of  feudalism.  He  did  for  French  law  what  Cujas  did  for  Roman 
law.  In  his  commentary  on  the  custom  of  Paris,  he  disengaged 
the  fundamental  principles  of  French  law  ;  and  by  his  systema- 
tization  of  the  customary  law  he  in  a  large  measure  prepared 
the  way  for  the  work  of  Pothier  and  for  the  Civil  Code.  Some  of 
his  contemporaries  called  him  the  prince  of  jurisconsults,  to 
which  he  all  too  readily  subscribed  ;  it  was  his  proud  boast  that 
he  yielded  to  no  one  and  could  be  taught  by  no  one. 

In  the  polemical  discussions  in  which  Cujas  and  the  foregoing 
jurists  were  involved,  a  good  deal  of  bitterness,  invective,  satire, 
gross  insult  was  imported.  "  Les  grands  jurisconsultes  de  cette 
epoque,"  says  M.  Brigsaud,  "  s'injuriaient  a  la  faQon  des  heros 
d'Homere."1  In  this  age  personal  abuse  accompanied,  and 
often  replaced,  argument.  Thus  Hotman,  in  his  attack  on  Cujas, 
reproached  him  for  returning  to  Catholicism  after  having  joined 
the  reformers,  said  that  he  would  blot  out  from  all  his  books 
the  name  of  the  apostate,  and  calumniously  described  him  as 
"temulentus,"  "lutulentus,"  "  turbulentus  "  (drunk,  dirty, 
turbulent).  He  was  even  more  severe  with  Baudouin.  Similarly 
Doneau  made  use  of  ridiculous  vituperation  and  false  charges. 
Lesser  men  like  Fournier  and  Jean  Robert,  professor  at  Orleans, 
likewise  wrote  insultingly  of  Cujas'  person,  and  made  captious 
and  malignant  attacks  on  his  method  and  doctrines.  On  the 
other  hand,  Cujas  did  not  disdain  to  reply — and  with  no  great 
moderation — to  such  pamphleteering  abuse,  and  even  descends 
to  making  trivial  anagrams2  from  the  names  of  opponents  un- 
worthy of  his  steel.  But  in  all  these  conflicts  he  was  rarely  the 
aggressor.  He  appears  to  have  been  extremely  sensitive  to 
criticism,  and  never  forgave  Merille  for  compiling  a  list  of  his 
inconsistent  statements.  (It  were  a  miracle  indeed  to  find  none 
in  work — and  mostly  pioneer  work — covering  such  an  immense 
ground,  and  necessarily  demanding  self-correction  in  the  light  of 
sul)sequent  conclusions.) 

1  Op.  dt.,  i.,  p.  354. 

2  Of.  Obaervat.,  ix.  c.  37  ;  ibid.,  xv.-xvii.  passim;  Notata  Antonii  Mercatoris. 


JACQUES  CUJAS  107 

Result  of  his  Work.  Conclusion. — Both  in  his  lifetime  and 
after  his  death  Cujas  was  esteemed  abroad  as  much  as  in  his  own 
country.  It  is  related  that  the  professors  in  Germany  were 
accustomed  to  raise  their  hats  when  they  mentioned  his  name.1 
Le  Conte  (Contius),  one  of  the  most  learned  of  his  contemporaries, 
described  him  as  "vir  doctissimus  et  iurisconsultorum  nostri 
temporis  princeps  "  ;2  and  it  was  said  that  he  was  the  man  born 
to  restore  jurisprudence  to  its  ancient  dignity  ("vir  iurispru- 
dentiae  in  antiquam  dignitatem  restituendae  natus  ") .  Pasquier , 
referring  to  the  different  schools  of  jurisprudence,  mentions 
the  last  as  that  of  the  humanists,  and  awards  the  palm  to 
Cujas,  who.  he  says,  never  had  and  perhaps  never  will  have 
his  equal.3 

Posterity  has  justified  the  work  of  Cujas,  the  great  humanist 
jurisconsult,  and  the  greatest  of  his  time,  as  against  feudal  tradi- 
tions, scholastic  procedure,  and  the  practice  of  accumulating 
opinions.     He  showed  how  it  was  possible  to  transform  the  in- 
discriminate and  irrational  treatment  of  Roman  law  into  a  sound 
investigation,   by  which   a   veritable  science  of  jurisprudence 
might  be  established.    Literature,  history,  and  philology  were 
henceforth  to  be  brought  into  the  service  of  legal  research. 
Scholars  as  well  as  practitioners  interested  themselves  in  Roman 
law,  which  came  to  be  recognized  as  an  instrument  of  general 
culture,  as  well  as  a  rich  pasture  for  the  practical  needs  of  the 
advocate  and  the  legislator.    The  work  of  the  jurist  was  regarded 
by  Cujas  not  as  a  thing  apart,  but  as  a  part  of  the  life  and  well- 
being  of  the  community.    With  regard  to  the  restoration  of  texts 
and  the  interpretative  exposition  thereof,  the  works  of  Cujas 
proved  a  fruitful  field  for  the  unsparing  gleanings  of  successors. 
The  editions  of  the  Corpus  luris  Givilis  by  Charondas  (1575), 
Pacius  (1580),  and  Godefroy  (1583)  were  greatly  indebted  to 
Cujas  for  textual  improvements,  as  well  as  for  exegetical  annota- 
tions.    Godefroy 's  edition  had  authoritative  force  in  the  courts 
throughout  the  seventeenth  and  eighteenth  centuries ;  and  the 
parlements  were  frequently  guided  in  their  decisions  by  the 
opinions  and  results  of  Cujas.    Even  much  earlier,  according  to 
J.  A.  de  Thou,  the  distinguished  historian  of  the  time,  he  was 
frequently  referred  to  in  the  tribunals  and  at  the  bar  as  "le 

1  Cf.  Pasquier,  Recherches  de  la  France,  vii.  8  ;  ix.  29. 

2  See  the  preface  to  his  edition  of  the  Corpus  luris  Civilis. 

3  Op.  cit.,  ix.  39 :  "  .  .  .  Je  donne  le  premier  lieu  a  nostre  Cujas,  qui  n'eut, 
selon  mon  jugement,  n'a  et  n'aura  jamais  par  aventure  son  pareil." 


108  JACQUES   CTJJAS 

jurisconsulte."1  Towards  the  end  of  the  eighteenth  century  the 
judicial  practice  of  the  "  pays  de  droit  ecrit "  was  profoundly 
influenced  by  his  work  ;  and  Pothier  accepted  him  as  a  guide 
in  his  Pandectae  JuMinianae,  and  in  those  parts  of  his  treatises  on 
contracts  relating  to  Roman  law.  And  so  the  work  of  Cujas 
served  as  an  authoritative  appeal  and  powerful  inspiration  to 
successive  ages,  until  it  was  in  a  large  measure  finally  embodied 
in  the  French  Civil  Code,  which  has  still  more  assured  it  perennial 
vitality. 

1  Histoire,  liv.  99,  an.  1590. 


ALBERICUS  GENTILIS1 

JT  has  too  long  been  the  custom  to  consider  Grotius  as  the  father 
of  modern  international  law,2  as  -a  resplendent  luminary  in  a 
seemingly  dark  age,  and  accompanied,  at  a  distance,  by  certain 
minor  satellites  barely  worthy  of  mention.  The  influence  of 
Grotius  has  undoubtedly  been  great ;  but  it  is  usually  forgotten 
that  the  way  was  prepared  for  him  by  others,  and  notably  by 
Gentilis.  The  achievement  of  the  Dutch  jurist  could  not  possibly 
have  been  what  it  was  in  the  absence  of  the  forcible,  reasoned, 
and  —  comparatively  speaking  —  pioneer  work  of  the  Italian 
lawyer.  A  study  of  the  work  of  Gentilis — and  to  appreciate  it 
duly,  it  must  ever  be  borne  in  mind  that  he  was  Grotius'  prede- 
cessor— will  show  what  a  high  place  he  takes  in  the  history  of 
modern  international  law,  and  particularly  in  regard  to  its 
development  on  the  positive  side  ;  and  it  will  be  seen  that  because 
of  the  greater  affinity  between  his  point  of  view  and  that  of 
modern  States  he  is,  in  that  respect,  more  truly  than  is  Grotius, 
the  progenitor  of  the  existing  law  of  nations. 

Life. — Albericus  Gentilis  (Alberico  or  Alberigo  Gentili)  was 
born  on  January  14,  1552,  at  San  Ginesio,  a  small  town  in  the 
mark  of  Ancona.  It  is  commonly  held  that  he  was  the  eldest 
of  seven,  though  some  reports  state  that  he  was  the  second  son. 
His  father,  Matthaeus  (Matteo),  was  a  physician.  After  receiving 
a  thorough  home  education,  Albericus  was  sent  to  the  University 
of  Perugia,  then  one  of  the  most  famous  in  Italy,  and  particularly 
noteworthy  as  a  school  of  law,  where  distinguished  men  like 

1  The  available  bibliographical  materials  are  given  by  Professor  Holland  in 
his  article  on  Gentilis  in  the  recent  edition  of  the  Encyclopaedia  Britannica  ; 
and  by  H.  Nezard  in  Les  Fondateurs  du  droit  international  (Paris,  1904). 

2  In  the  recently  published  work,  The  International  Law  and  Custom  of 
Ancient  Greece  and  Rome,  2  vols.  (Macmillan  and  Co. ),  the  present  writer  has 
shown  that  modern  international  law  is  by  no  means  a  creation,  but  partly 
a  restoration,  partly  a  continuation  of  ancient  institutions  and  customs. 
Indeed,  Gentilis  and  Grotius  and  all  the  early  writers  on  the  law  of  nations 
constantly  appeal  to  the  classical  times  for  authority,  for  rules,  for  practices, 
for  analogies,  for  all  kinds  of  illustrations. 

109 


HO  ALBEEICtfS   GENTILIS 

Baldus  and  Bartolus  had  been  professors.  Soon  after  reaching 
liis  twentieth  year  he  graduated  as  Doctor  of  Civil  Law.  For  some 
tune  afterwards  he  held  the  office  of  "proctor"  or  judge  at 
Ascoli ;  then  took  up  the  work  of  advocacy  in  his  native  town, 
and  was  often  consulted  in  matters  relating  to  its  municipal 
statutes  and  institutions. 

His  father  having  embraced  Protestantism,  he  was  obliged, 
through  the  oppressive  exertions  of  the  Inquisition,  to  leave  home, 
and,  together  with  Albericus,  he  proceeded  to  Laybach  in  Car- 
niola.  There  they  were  soon  joined  by  the  youngest  son,  whom 
Albericus  took  to  Tubingen.  The  latter  then  went  to  Heidel- 
berg, and  some  months  after  came  to  England  (August,  1580). 
Here  he  was  welcomed  by  a  group  of  Italian  Protestant  refugees, 
amongst  whom  were  men  like  Contio,  a  theological  writer,  Bor- 
garucci,  physician  to  the  Earl  of  Leicester,  and  Castiglione, 
Italian  tutor  to  Elizabeth.  Through  this  circle  Albericus  soon 
became  acquainted  with  Sir  Philip  Sidney,  Leicester,  then  Chan- 
cellor of  Oxford  University,  Robert  Dudley,  Vice-Chancellor,  and 
Tobie  Ma  the  w.  In  January,  1581,  he  was  admitted,  through  the 
Earl's  letters  of  commendation,  into  the  University  as  Doctor  of 
Civil  Law,  and  a  little  later  was  appointed  reader.  He  was 
delighted  with  his  work,  and  expressed  great  admiration  and 
enthusiasm  for  Oxford — for  its  studious  colleges  as  well  as  for 
its  beautiful  situation.1  In  the  meantime  his  fame  as  a 
civilian  spread  rapidly  through  his  lectures,  disputations,  and 
writings. 

In  1584  the  English  Government  consulted  Gentilis,  together 
with  Jean  Hotoman  (who  had  been  received  into  the  University 
at  the  same  time  as  the  former),  on  the  Mendoza  affair  ;  and  in 
spite  of  deep  feeling  aroused  by  the  treacherous  conduct  of  the 
Spanish  ambassador,  the  opinion  of  Gentilis  was  followed.2  The 
next  year  he  developed  the  doctrine  of  the  rights  and  duties  of 
ambassadors,  first  in  a  University  disputatio,  then  in  a  published 
work,  De  legationibus,  dedicated  to  Sir  P.  Sidney.3  In  1586,  by 

1  Cf.  the  preface  to  his  Dialogi  Sex,  which  was  dedicated  to  Leicester  : 
'Qui  Oxoniam  norint  et  ii  norint  necesse  est  ut  inecum  agatur  qui  Oxouiae 
vivo,  in  ea  scilicet  civitato  quae,  situs  amoenitate  felicissimamaguinceutissiinis 
studiosorum  collegiis,  proculdubio  augustissima  in  toto  or  be." 
3  See  infra,  on  Ambassadors. 

3  Wheaton,  History  of  the  Law  of  Nations,  pp.  232-233  (following  Ward), 
states  that  the  famous  consultation  took  place  the  year  after  the  publication 
the  De  legationibus.     This  is  not  correct.     Besides,  Wheaton  appears  to 
have  misunderstood  the  purport  of  Gentilis'  opinion  on  the  question. 


ALBEKlCtJS    OENTlLlS  111 

the  influence  of  Walsingham,  Albericus  accompanied  Horatio 
Pallavicino,  who  was  despatched  on  an  embassy  to  the  Elector 
of  Saxony  ;  and  on  his  return  to  Oxford  the  next  year  he  was 
appointed  to  the  Regius  Professorship  of  Civil  Law. 

Various  publications  were  issued  by  him  on  a  large  number  of 
questions  of  the  day  ;  besides  treatises  on  civil  law  and  on  ancient 
war  practices,  there  were  the  more  famous  Prima  commentatio  de 
iure  belli,  published  in  London,  1588,  the  second  and  third  parts 
1589.  The  three  books  were  issued  together  in  1598  at  Hanau 
as  a  practically  new  work,  De  iure  belli  libri  tres.  Notwithstand- 
ing his  academic  and  literary  activities,  he  became  a  member  of 
Gray's  Inn,  August,  1600,  and  found  time  for  forensic  engage- 
ments. In  1605  he  was  appointed,  with  King  James's  permis- 
sion, advocate  to  the  Spanish  embassy  ;  and  in  that  capacity 
appeared  on  behalf  of  the  King  of  Spain  before  the  English 
Court  of  Admiralty  which  tried  certain  prize  cases  that  had 
arisen  in  the  war  between  Spain  and  the  Netherlands.  (The 
notes  of  the  cases  in  which  he  took  part  were  published  after  his 
death  under  the  title  of  Advocationis  Hispanicae  libri  duo, 
Hanoviae,  1613.)  Gentilis  died  in  London  on  June  19,  1608, 
and  was  buried  in  St.  Helen's  Church,  Bishopsgate. 

The  importance  of  his  writings,  and  the  great  services  he 
rendered  to  international  law,  have  only  recently  been  fully 
realized.  For  a  long  tune  writers  had  looked  to  Grotius  as  the 
founder  of  the  modern  law  of  nations,  and  had  neglected  to  take 
account  of  his  forerunners.  But  the  great  work  of  Gentilis  was 
bound  to  be  sooner  or  later  recognized.  It  may  be  said  that  his 
resuscitation  was  due  to  men  like  Emerico  Amari,  W.  A.  Reiger 
of  Groningen,  Mancini,  and  most  of  all  to  Professor  Holland.  In 
November,  1874,  Professor  Holland  delivered  an  inaugural  lecture 
on  the  life  and  writings  of  Albericus  Gentilis,  whose  contribution 
to  international  law  was  pointed  out  and  whose  claims  were  duly 
emphasized.  A  published  copy  of  this  lecture  came  to  the  notice 
of  Professor  Mancini  of  Rome  ;  and  in  March,  1875,  an  influential 
Italian  committee  was  formed  under  the  chairmanship  of  Mancini 
and  the  honorary  presidency  of  Prince  Humbert.  In  the  follow- 
ing September  it  issued  a  manifesto,  which  spoke  of  Gentilis  as 
"  the  prophet  of  God,  the  inspired  apostle  of  peace,"  as  an  illus- 
trious advocate  of  liberty  of  conscience,  as  an  initiator  of  a  new 
epoch.  Festivities  were  in  many  quarters  held  in  his  honour. 
But  the  movement  was  not  without  opposition.  On  the  one 


112  ALBERICTJS   GENTILIS 

hand,  in  Italy  the  ultra-Catholic  press  condemned  the  "  impious  " 
project  to  do  honour  to  an  "  apostate  "  and  an  "  enemy  of  the 
Church."  On  the  other  hand,  in  Holland  the  worshippers  of 
Grotius  manifested  overmuch  anxiety  as  to  the  threatened 
supremacy  of  their  countryman,  and  even  accused  Professor  Asser 
of  treachery  to  his  country  for  identifying  himself  with  the  Italian 
movement — the  outcome  of  which  was  the  unveiling  in  1886  of  a 
statue  of  Grotius  at  Delft.  It  was  not  till  1908,  the  tercentenary 
of  the  death  of  Albericus,  that  the  Italian  authorities  succeeded 
in  erecting  a  monument  to  him  in  his  native  town.  In  England, 
a  committee  under  the  honorary  presidency  of  Prince  Leopold 
set  up,  in  1877,  a  memorial  to  the  Italian  jurist  in  St.  Helen's 
Church,  and — what  was  of  more  practical  importance — caused  a 
new  edition  of  his  greatest  work,  the  De  iure  belli,  to  be  published 
under  the  editorship  of  Professor  Holland. 

Works. — The  works  of  Gentilis  show  a  very  wide  range  of 
subjects  ;  and,  apart  from  a  quantity  of  existing  manuscripts  and 
some  writings  no  longer  extant,  they  comprise  some  thirty  publi- 
cations.1 His  attention  was  constantly  occupied  with  the  various 
legal,  political,  and  moral  controversies  of  the  time,  including 
questions  relative  to  the  law  of  nations,  the  union  of  England 
and  Scotland,  the  limits  of  sovereign  power,  the  application  of 
certain  old  rules  of  civil  and  canon  law  and  the  conflicts  thereof, 
the  problem  of  remarriage,  the  legal  and  moral  position  of  stage 
plays,  the  justifiableness  of  lying,  etc.  Of  all  his  works  those  of 
most  lasting  importance  are  the  three  dealing  with  matters  of 
international  law — namely,  firstand  f  oremostZ>e  iure  belli,  secondly 
De  legationibus,  and  Advocatio  Hispanica.  These  three  works 
deal  more  or  less  systematically  with  the  principal  portions  of 
the  entire  subject,  and,  on  the  one  hand,  contain  vigorous  argu- 
ments on  new  and  doubtful  questions,  on  the  other,  emphasize 
previously  established  rules  which  from  time  to  tune  had  been 
broken.  Gentilis  is  far  from  attempting  the  detailed  elaboration 
of  a  complete  code  ;  but  in  each  of  his  contributions  to  the  subject 
he  has  made  his  mark.2 

The  De  iure  belli  probably  owes  its  origin  to  a  series  of  in- 

1  For  a  detailed  list  of  his  writings  see  Alberico  Qentili,  by  Professor  Holland 
—a  reprint  of  the  inaugural  lecture  of  1875— in  Studies  in  International  Law 
(Oxford,  181)8)  ;  and  the  same  writer's  article  in  tho  Encyclopaedia  Britannica, 
aa  already  mentioned. 

2  The  editions  referred  to  in  the  present  essay  are  De  iure  belli  (ed.  Hoi- 
land) ;  De  legationibua  (Londini,  1585) ;  Advocatio  Hispanica  (Hanoviae  13). 


ALBEBICUS   GENTILIS  113 

augural  "disputationes,"  though  the  work  betrays  few  signs  of 
the  usual  character  of  academic  disputations.  The  subject  of 
the  law  of  war  is  at  once  liberated  from  the  archaic  point  of  view 
which  confounded  it  with  the  regulations  of  military  discipline, 
and  is  definitively  placed  on  firm  foundations,  supported  by  legal 
as  well  as  moral  sanctions.  It  is  divided  into  three  parts.  Book  I . 
deals  with  war  in  general — -who  may  make  it,  and  what  motives 
or  causes  justify  it.  Book  II.  lays  down  the  lawful  mode  of 
conducting  belligerent  operations — declaration,  acts  permitted 
and  forbidden  after  open  hostilities  have  commenced,  use  of  spies, 
poison,  and  stratagems,  treatment  of  the  person  of  the  enemy 
(non-combatants,  prisoners,  hostages),  and  of  the  different  kinds 
of  enemy  property,  pacts  and  truces  of  the  commanders.  Book  III . 
discusses  the  conclusion  of  war,  rights  of  occupation,  and  of  the 
victor  as  to  the  persons  and  property  of  the  conquered,  establish- 
ment of  peace.  Thus  the  question  which  the  De  iure  belli  under- 
takes to  answer  is  :  Under  what  circumstances  is  war  justly  under- 
taken, conducted,  and  terminated  ? 

The  De  legationibus  presents  perhaps  less  a  development  of 
principles  of  the  law  relating  to  ambassadors  than  an  historical 
account  of  legations.  It  is  similarly  divided  into  three  books — 
the  first  dealing  with  the  historical  origin  of  different  kinds  of 
embassies,  the  ceremonies  and  solemnities  of  the  Roman  fetial 
envoys,  the  place,  time,  and  mode  of  reception  of  foreign  ambas- 
sadors coming  to  Rome  and  the  munera  bestowed  upon  them  ; 
the  second  book  with  the  privileges  and  immunities  of  accredited 
envoys  generally  ;  and  the  third  with  the  qualifications  which  an 
ambassador  ought  to  possess. 

The  Advocatio  Hispanica  is,  as  has  already  been  pointed  out,  a 
collection  of  interesting  notes  on  cases  in  which  the  author  was 
engaged  as  counsel  for  Spain  against  the  Netherlands.  In  the 
war  between  these  two  countries  the  latter  had  claimed  the  right 
to  capture  Spanish  prizes  in  English  waters.  Besides  the  appeal 
to  historic  precedents  and  the  application  of  rules  of  Roman 
jurisprudence,  there  is  a  precise  and  vigorous  statement  of  the 
doctrine  of  territorial  sovereignty  (including  exclusive  jurisdiction 
in  adjacent  seas)  as  the  fundamental  principle  underlying  the 
mutual  rights  and  obligations  of  belligerents  and  neutrals.  In 
reference  to  this  great  question  Gentilis  makes  a  decided  advance, 
and  we  find  that  his  conclusions  forestall,  for  the  most  part, 

those  of  modern  international  law. 

9 


114  ALBERICUS   GENTILIS 

These  works  are,  on  the  whole,  written  in  a  style  characterized 
by  energy,  directness,  and  clearness  ;  though  at  times,  indeed, 
passages  are  found  which  betray  a  certain  scholastic  pedantry, 
with  the  usually  accompanying  faults  of  prolixity  and  ambiguity. 
G^ntilis  does  not,  it  is  true,  write  Latin  with  the  facility  and 
classical  grace  of  an  Erasmus,  or  some  of  the  other  practised 
Ciceronians  of  the  time  ;  but  in  comparison  with  most  of  his  con- 
temporaries, especially  those  who  wrote  juristic  or  theological 
treatises,  he  is  at  advantage  through  his  ease,  vivacity,  variety, 
conversational  tone,  freedom  from  elaborate  rhetorical  flourishes. 
Moreover,  by  virtue  of  his  shrewd  humour  and  his  concentration 
on  the  particular  matter  before  him,  his  style  is  invariably  saved 
from  dryness  and  tedious  irrelevancies. 

Position  and  Method. — What  position  does  Gentilis  occupy  in 
the  history  of  international  law,  what  is  his  point  of  view,  and 
what  is  his  method  of  dealing  with  the  subject  ?  Gentilis  is  the 
first  great  writer  of  modern  international  law,  the  first  clearly  to 
define  its  subject-matter,  and  to  treat  it  in  the  way  which  is 
fundamentally  in  harmony  with  the  conception  and  practice  of 
our  own  time.1  For  this  reason  it  may  justifiably  be  claimed 
that — as  the  precursor  of  Grotius,  and  as  the  one  who  sub- 
stantially prepared  the  way  for  him  and  greatly  influenced  his 
and  all  succeeding  work — Gentilis  is  the  real  "father"  of  the 
modern  law  of  nations  (that  is,  if  it  is  at  all  proper  to  confer  such 
a  title  on  any  particular  jurist).2  Amongst  the  pre-Grotians  he 
is  the  illustrious  representative  of  the  historical  school ;  his  in- 
sistence on  the  positive  aspect  of  international  law  is  almost  as 
emphatic  as  in  the  work  of  Bynkershoek.3  On  Zouche,4  the 
earliest  English  exponent  of  the  same  general  view,  the  Italian 
writer's  influence  was  unmistakable.  Notwithstanding  various 
shortcomings — indeed,  inevitable  at  the  time  he  wrote — the  entire 
work  of  Gentilis  is  manifestly  superior  to  all  previous  procluc- 
tioas,  such  as,  for  example,  those  of  Ayala,  Victoria,  Soto,  Belli, 

Cf.  D.  H.  L.  von  Ompteda,  Literatur  des  gesammten  sowohl  naturlichen  als 
positive*.  Viilkerrechts  (Regensburg,  1785).  §  49,  p.  168  :  "  Diescr  ist  der  crste 
jclehrte,  dor  sich  einige  wahre  Verdienste  um  die  Volkerrcchtswissenschaft 
erworbenhat .  .  .  dcrsoichoalscinenGegenstanddcsVolkcrrechtsabhandcltc." 
Cf.  Lamprcdi.  Del  commercio  del  popoli  netitrali,  in  the  preface  ;  C.  von 
Kaltenborn,  Die  Vorliufer  des  Hugo  Grotius  (Leipzig,  1848),  p.  228  :  "  Er  ist 
er  erste  wichtigere  Autor  des  inodcrnen  Volkerrechts  und  in  dieser  Bcziehung 
der  eigentlicho  und  unmittolbare  Vorlaufer  des  Grotius  zu  betrachten. 
Ja  »ch  halte  ihn  fiir  die  unmittelbare  Grundlasje  des  Grotius." 
Sec  the  present  writer's  article  on  Bynkcrshoek,  infra. 
See  the  present  writer's  article  on  Zouche,  infra. 


ALBERICUS   GENTILIS  115 

or  Suarez,  who  either  confused  civil  law  with  rules  regulating 
international  relations  or  failed  to  grasp  the  difference  between 
philosophical  or  theological  principles  and  juridical  rules,  or, 
again,  confounded  the  rules  of  interstatal  war  with  the  municipal 
prescriptions  of  military  discipline,1  or  identified  the  "societas 
gentium "  with  an  exclusive  Christian  commonwealth.  The 
theological  basis  of  the  whole  subject,  which  was  generally 
affirmed  or  assumed  by  his  predecessors,  was  once  and  for  all 
undermined.  The  dogmatic  procedure  of  the  theologians  was 
unreservedly  impugned ;  they  were  roundly  advised  not  to 
meddle  with  matters  which  did  not  concern  them,  "  silete  theo- 
logi  in  munere  alieno."2  Similarly,  the  a  'priori  methods  of  the 
philosophers  were  rejected.  The  abstract  principles  and  meta- 
physical assumptions  associated  with  the  investigations  into  the 
intrinsic  nature  of  God,  mankind,  and  the  State  he  disregarded 
as  necessarily  leading  to  the  establishment  of  an  ideal  system 
which  could  not  meet  the  demands  nor  guide  the  growth  of  an 
actual  society  of  nations  which  possesses  an  essentially  organic 
and  dynamic  character.  What  Bacon  insisted  on  as  the  true 
method  of  science,  Gentilis  had  already  maintained  to  be  the 
method  of  international  law  :  the  examination  of  actual  pheno- 
mena, of  concrete  facts,  and  then  by  a  process  of  induction  the 
inferring  therefrom  of  general  rules,  which,  however,  are  still 
subject  to  subsequent  modification  or  even  cancellation,  in 
accordance  with  newly  discovered  facts. 

The  apprehension  of  the  various  issues  arising  out  of  this  con- 
ception was  facilitated  by  his  restricting  the  field  of  juristic 
inquiry,  and  eliminating  such  matters  as  were  not  clearly  ger- 
mane thereto.  In  contradistinction  to  the  "Humanists,"  the 
"  Alciatists,"  a  school  founded  by  Alciati,3  and  including  men 
like  Cujas  and  Hotman,  Albericus  associated  himself  to  the  old 
school  of  civilians,  the  "  Bartolists,"4  who  confined  themselves 
more  to  the  subject-matter  of  jurisprudence  proper,  and  devoted 
themselves  but  little,  to  the  assimilation  of  classical  culture  and 

1  Of.  the  early  but  influential  example  of  Isidore  of  Seville  (beginning  of 
seventh  century),  who,  after  enumerating  the  various  subjects  comprised  in 
ius  gentium,  admits  a  further  division,  ius  militare,  including  a  large  variel  y 
of  heterogeneous  matters,  such  as  the  mode  of  commencing  hostilities,  broaches 
of  military  discipline,  desertion,  military  dignities  and  awards,  sharing  of 
booty,  etc.  (Originum  sive  Etymologiarum  lib.  v.,  especially  Book  V.,  cc.  4-7). 
We  see  here  considerable  borrowings  from  Ulpian. 

2  De  iure  belli,  I.  12. 

3  Soe  the  present  writer's  article  on  Alciati,  mipra. 
*  On  Bartolus  and  his  scheol,  see  supra. 


116  ALBERICUS   GENTILIS 

wide  literary  learning.  To  the  rebuke  of  Cujas  that  the  Bar- 
tolists,  through  neglecting  the  "humanities,"  were  foolish  and 
shameless  babblers  and  a  sordid  crew — "  blaterones,  insipientes, 
improbi,  avari  " — Gentilis  retorted  that  the  pretentious  Alciatists 
hardly  deserved  the  name  of  jurists  at  all,  and  that  jurists  might 
manage  well  enough  without  giving  themselves  to  Greek  and 
Latin  letters.1  Nevertheless,  Albericus,  though  not  possessing 
the  great  erudition  of  Grotius,  had  wide  learning,  and,  in  order 
to  support  or  illustrate  his  facts  and  conclusions,  he  quotes  or 
refers  to  a  great  number  of  writers,  classical  and  modern,  in- 
cluding contemporary  authorities  ;  e.g.  Herodotus,  Thucydides, 
Aristotle,  Polybius,  Livy,  Plutarch,  Cicero,  Dio  Cassius,  Diodorus 
Siculus,  Dionysius  of  Halicarnassus,  Philo,  the  Bible,  the  Digest, 
Corpus  lurls  Canonici,  Tertullian,  St.  Augustine,  Zonaras,  Baldus, 
Alciati,  Bodin,  Hotman,  Polydore  Vergil,  Machiavelli,  Guic- 
ciardini,  Covarruvias,  Belli,  and  others. 

Whilst  Gentilis  belonged  to  the  Bartolists,  so  far  as  municipal 
jurisprudence  was  concerned,  he  adopted  an  independent  and 
what  was  then  a  revolutionary  attitude  with  regard  to  the  law 
of  nations.  We  may  well  believe  him  when  he  states  that  he 
has  read  nothing  good  on  the  law  of  war  ;2  though  we  must 
admit  that  he  was  to  some  extent  indebted  to  writers  like  Fran- 
riscus  a  Victoria  (1480-1546),3  and  to  Pierino  Belli  (Bello,  or 
Bellinus)  (1502-1575).4  He  at  once  rejected  the  methods  of  the 
civilians,  especially  those  of  the  school  of  Bologna,  who  considered 
international  law  as  a  mere  application  or  extension  of  the  civil 
law  :  his  disquisition  and  development  of  principles  in  general  do 
not  take  the  form — so  common  before  him — of  an  elaborate  and 
indiscriminate  commentary  on  the  Roman  codes.  And  this  care- 
ful discrimination  on  his  part  is  the  more  remarkable  in  view  of 
the  fact  that  he  was  devoted  to  Roman  law  and  had  contributed 
much  to  its  revival  at  Oxford,  as  has  been  testified  by  a  con- 
temporary English  writer.5  Gentilis  adopts  the  convenient  ex- 
pression "societas  gentium,"  but  is  at  pains  to  insist  that  a 
"societas"  of  this  character  is  not  analogous  to  a  "civitas" 
u rider  one  sovereign  authority,  and  that  therefore  its  rights  and 

1  Dialogi  Sex  (1582).     Cf.  T.  E.  Holland,  Studies  in  International  Law. 

2  De  iure  Belli,  I.  1. 

3  Relectiones  theologicae  (Lyons,  1557),  especially  V.  and  VI. 

De  re  militari  et  de  bello,  written  in  1558,  published  in  Venice  1563. 
s  W.  Pulbecke,  Direction  or  Preparation  to  the  Study  of  the  Law  (1599), 
\  iii..  where  he  remarks  that  Gentilis  "  who  by  his  great  Industrie  hath 
quickened  the  dead  bodic  o  the  civill  law  written  by  the  auncient  civilians." 


ALBERICUS   GENTILIS  117 

obligations  cannot  be  determined  by  provisions  of  the  civil  law. 
Occasionally  he  introduces  principles  and  conceptions  of  Roman 
law,  as  in  his  application  of  the  lex  lulia  maiestatis  in  discussing 
the  question  of  the  exterritoriality  of  ambassadors,1  in  his  inquiry 
whether  military  pacts  are  contracts  stricti  iuris  or  bonae  fidei,  in 
his  treatment  of  the  doctrine  of  prescription.  But  these  con- 
siderations of  Roman  jurisprudence  are  not  advanced  in  the 
manner  of  preceding  writers  for  the  purpose  of  indicating  any 
ultimate  legal  sanction  or  furnishing  final  solutions,  but  mainly 
with  a  view  to  illustrate  his  argument.  Thus  Gentilis  broke  with 
the  tradition  which  had  lasted  for  several  centuries — from  the 
time  of  Accursius  and  Bartolus  (who,  as  Grotius  says,  might 
perhaps  be  excused  on  account  of  the  "temporum  suorum  in- 
felicitas  ")2  down  even  to  the  authorities  of  his  own  age,  such  as 
Govarruvias  and  Vasques.  Of  course,  neither  Gentilis  nor  any 
one  else  could  entirely  eliminate  the  principles  of  the  civil  law 
from  a  system  of  international  law.  There  are,  on  the  one  hand, 
fundamental  matters  which  are  of  necessity  common  to  the  two, 
and,  on  the  other,  various  doctrines  in  the  Digest  "  to  facilitate 
the  solution  of  differences  arising  between  States."  Thus, 
James  I.  in  a  speech  in  Parliament,  March  20,  1609,  expressed 
his  great  appreciation  of  the  Roman  law  which  he  regarded  as, 
in  a  sense,  a  lex  gentium. 

Again,  Gentilis  is  an  innovator  in  that  he  considers  recent  and 
contemporary  events,  and  invokes  testimony  drawn  from  the 
practice  of  the  time,  in  support  of  his  conclusions.  It  is  true  he 
constantly  refers  also  to  ancient  authorities,  but  in  doing  so  he 
never  forgets  he  is  dealing  with  modern  questions  ;  and,  there- 
fore, such  references  are  not  a  mere  array  of  scholastic  erudition. 
His  conception  of  the  position  and  conventional  nature  of  inter- 
national law  is  emphasized  throughout  by  his  discussion  of  the 
events  of  the  time,  which — whether  in  the  form  of  express  treaties 
or  customary  acts  pointing  to  implied  rules — he  holds  to  be  of 
preponderating  importance,  especially  so  as  law  is  made  for 
nations  and  is,  therefore,  necessarily  subject  to  organic  develc  p- 
ment  and  adaptation  to  circumstances.  Whereas  Grotius  de- 
liberately avows  that  he  prefers  examples  from  ancient  Greece 
and  Rome  on  the  ground  that  proceeding  from  such  sources  they 
will  have  most  weight,  Gentilis  occupies  himself  largely  with  the 
political  affairs  and  problems  of  the  sixteenth  century — with  the 

1  De  legationibus,  II.  7-8.  2  Proleg.  54. 


ALBERICUS   GENTILIS 

conflicts  between  Charles  V.  and  Francis  L,  between  Spain  and 
the  Netherlands,  between  England  and  Spain,  between  Italy  and 
her  oppressors,  with  the  wars  of  conquest  in  America,  and  also 
with  many  matters  other  than  warlike,  such  as  the  question  of 
papal  prerogative,  the  alliance  with  non-Christian  nations,  the 
conflicting  claims  of  neutral  merchants  and  belligerents,  the 
freedom  of  the  sea.  In  the  treatment  of  all  these  controversies, 
Gentilis,  if  somewhat  chary  of  detaching  himself  from  the  facts 
and  launching  forth  into  wide  generalizations,  imported  vigour, 
freshness,  and  common  sense,  and  suggested  acceptable  solutions 
in  accordance  with  the  criterion  of  utility  and  necessity,  and  with 
the  idea  of  justice  and  equity  of  a  prudent  impartial  man  of 
affairs.  And  these  solutions,  in  the  form  of  determined  prin- 
ciples, were  advanced,  it  must  be  remembered,  at  a  time  when 
States  and  sovereigns  were  too  prone  to  practise  bigotry  and 
dissimulation,  deceit,  and  evasion,  to  resort  to  excessive  rigour 
and  cruelty,  to  consult  considerations  marked  by  caprice  or 
inordinate  self-interest.1 

1.  Conception  of  the  Law  of  Nations  ;  Community  of  States ; 
Civil  Basis.2 — The  law  of  nations,  designated  by  Gentilis  ius 
gentium  3  is  that  law  which  all  nations  or  at  least  the  greater 
part  of  them,  "  maior  pars  orbis,"  agree  upon.  It  is  the  law  of 
the  society  or  community  of  States.4  The  fundamental  notion  is 
thus  clearly  defined,  although  he  does  not  use  the  more  precise 
expression  "  ius  inter  gentes  "  consistently  adopted  by  Zouche  6 
and  even  foreshadowed  by  Franciscus  a  Victoria.6  Such  law 
regulating  the  relationships  between  independent  sovereigns  or 
peoples  is  the  result  either  of  express  conventions  or  of  tacit 
compacts  inferred  from  long-established  customs  generally  acqui- 
esced in.  The  members  of  the  "societas  gentium"  are  inter- 
dependent as  well  as  independent ;  hence  as  human  beings  are 
in  question  who  have  interests  and  needs  in  common,  mutual 
relationships  are  inevitable,  association,  understanding,  and 

1  Cf.  R.  Ward,  An  Inquiry  into  the  Foundation,  and  History  of  the  Law  of 
Nations  in  Europe,  2  vols.  (London,  1795),  vol.  ii.,  p.  612. 

2  For  the  sake  of  clearness  and  convenience,  and  to  obviate  repetition,  I 
have  considered  Gontilis'  work  as  a  whole  under  the  classification  here  adopted 
and  have  avoided  separate  analyses  of  his  three  principal  writings. 

3  On  the  conception  of  ius  gentium,  see  International  Law  and  Custom  of 
Ancient  Greece  and  Rome,  vol.  i.,  pp.  70  et  seq.,  89  et  seq.,  and  passim. 

4  De  iure  belli,  I.  1. 

5  See  the  article  on  Zouche,  infra. 

6  Thus  in  his  Relection&s  theologicae,  V.  1,  we  find  this  definition :  "  Quod 
naturalis  ratio  inter  omnes  gentes  constituit  vocatur  ius  gentium." 


ALBERICUS   GfiNTlLlS  119 


governing  laws  are  necessary.1  These  laws  have,  on  the  one 
hand,  a  positive  basis  —  the  "  usus  gentium  "  —  and,  on  the  other, 
are  due  to  the  exigence  of  natural  reason.2  The  authority  of  the 
ius  naturae  or  ius  naturale  or  ratio  naturalis  was  invoked  by  all 
writers,  earlier3  and  later,  including  Grotius,  and  even  such 
positivists  as  Bynkershoek  and  De  Martens.  But  unlike  the 
sixteenth-century  writers,  especially  the  Jesuits,  with  their 
revived  scholasticism  and  their  a  priori  procedure,  Gentilis  was 
not  given  to  the  indiscriminate  adoration  of  this  "natuial" 
principle,  and  to  the  elaboration  of  a  multiplicity  of  theses  largely 
irrelevant  and  extraneous  to  the  main  subject.  In  the  sixteenth 
century,  indeed,  investigations  into  the  ius  naturae  began  to  be 
made  by  writers  like  Oldendorp,4  Hemming,5  and  others,  who 
treated  the  subject  from  a  wider  point  of  view  than  the  Jesuit 
or  Franciscan  theologians  had  done  or  were  doing.  Albericus 
introduced  the  principle  of  natural  reason  partly  to  explain  the 
origin  of  international  law,  and  partly  to  fortify  the  positive 
sanction  ;  and,  in  so  doing,  he  adopted  the  Protestant  conception 
as  against  the  Catholic  notion  —  in  accordance  with  the  canon 
law  —  of  a  universal  hierarchy  under  the  papal  headship,  or,  in 
matters  temporal,  the  idea  of  an  empire  under  the  Emperor  as  a 
continuation  of  the  "imperium  romanum,"  in  accordance  with 
the  views  of  the  civilians.6  Very  frequently  we  find  that  Gentilis 
appeals  to  the  ius  naturae  in  order  to  test  the  validity  of  any 
doctrine  or  the  legitimacy  of  any  practice,  and  usually  dis- 
regards the  current  vague  metaphysico-legal  significance  of  that 

1  As  to  the  reason  for  the  establishment  by  mankind  of  laws  in  general,  ho 
says  :  "  Ut  haec  duo  sunt,  fragilitatis  conscientia  et  popnao  timor,  ex  quibus 
omnia  fere  iura  humanitatis  oriuntur"   (De  iure  belli,  III.   13;  Holland's 
edition,  p.  344). 

2  De  iure  belli,  III.  9  ;  p.  316  :  "...  Naturalis  ratio,  quao  auctor  est  iuris 
gentium  .  .  ."  ;  p.  319  (referring  to  the  authority  of  Aristotle)  :  "  .  .  .  rem 
naturalem  esse,  quae  semper  fieri  et  ubique  solet."     Cf.  the  similar  point  of 
view  of  Suarez,  Tractatus  de  legibus  (1612),  II.  19,  9. 

3  E.g.  Victoria  ;  Bracton,  De  legibus  ac  consuetudinibus  Angliae  (written  in 
the  middle  of  the  thirteenth  century),  defines  ius  gentium  as  the  law  which 
nations  use,  and  which  is  derived  from  natural  law.     Also  in  the  Siete  Parhdas 
(finished  in  1265  under  the  direction  of  Alfonso  X.  of  Castile)  frequent  refer- 
ence is   made  to  natural  law,  which  is  defined  as  the  law  of  all  animate 
beings. 

4  J.  Oldendorp  (d.  1561),  Isagoge  seu  elementaria  introdudio  iuris  naturae 
gentium  et  civilis  (Coloniae,  1539). 

5  N.    Hemming    (1513-1600),    De    lege   naturae    apodictica    methodus  .  .  . 
(Witebergae,  1562). 

6  Victoria  likewise  denied  tide  Pope's  claim  to  be  "  dominus  orbis  "  in  things 
temporal,  and  rejected  the  alleged  world  lordship  of  the  Emperor  as  being 
contrary  to  the  ius  naturale,  divinum,  or  humamtm  (Rdectiones  theologicae, 
I.  6  ;  V.). 


120  ALBERICUS   GENTILIS 

term,  and  interprets  it  in  the  sense  of  humanity,  justice,  the 
highest  common  sense  of  mankind.1  And  throughout  his 
argument  he  insists  on  the  positive  juridical  sanction  quite 
as  much  as  on  the  considerations  of  ethics  or  on  the  behests 
of  divine  law,  and  he  is  careful  to  discriminate  between  the 
work  and  objects  of  theologians  and  the  sphere  and  functions 
of  jurists.2 

The  pioneer  work  of  Gentilis  was  in  harmony  with  the  larger 
movement  of  the  sixteenth  century,  which  witnessed  a  trans- 
formation of  society,  the  establishment  of  a  new  spirit  and  wider 
outlook,  the  decline  of  theocracy,  the  rise  of  the  modern  State. 
The  political  conceptions  of  the  Middle  Ages,  which  identified 
civil  and  ecclesiastical  authority,  were  derived  on  the  one  hand 
from  Greek  and  Roman  doctrines,  on  the  other  from  Hebrew 
and  Christian.  Towards  the  end  of  the  thirteenth  century  the 
papal  temporal  supremacy  began  to  be  seriously  opposed,  espe- 
cially in  France,  and  its  decline  was  further  hastened  on  by  the 
great  schism.  The  conciliar  movement  of  the  fifteenth  century 
spread  the  theory  that  sovereign  power  was  of  the  nature  of  a 
trust.  The  Renaissance  and  the  Reformation  revived  "human- 
ism," scientific  curiosity,  established  a  spirit  of  independence, 
political  as  well  as  spiritual,  and  a  desire  to  find  a  more  rational 
basis  for  human  society  than  the  theocratic,  and  substituted  civil 
for  clerical  authority,  a  society  of  territorial  States  resting  on  a 
lay  and  juridical  foundation  for  a  theocratic  confederation  sub- 
ject to  canon  law.  And  at  the  head  of  such  States  are  monarchs 
who,  in  the  view  of  Gentilis,  are  in  the  position  of  guardians  or 
"administrators  "  of  their  respective  countries,  and  not  absolute 
rulers  independent  of  law.  Grotius  approves  St.  Thomas's  inter- 
pretation of  the  fifty-first  Psalm  as  to  the  irresponsibility  of 
princes  and  their  superiority  to  law  ;  Gentilis,  though  writing 
earlier,  shows  himself  to  be  more  in  harmony  with  modern 
views  when  he  asserts  that  it  is  a  hallucination  of  theologians, 
mere  adulation  of  lawyers  to  represent  to  kings  that  they  are 
permitted  to  do  everything,  and  that  their  sovereignty  is 
absolute.3 

1  Cf.  De  legationibiui,  II.  18  :  "  Habet  ius gentium  rationes  naturalcs  quae, 
mm  bus  a  natura,  sic  notao  sunt  ut  arguments  nullo  indigeant,  nullaque, 
quibus  adprobentur,  arte." 
|[  Cf.  DC  hire  belli,  I.  3 ;  p.  16. 

Ibid.,  III.  15  ;  p.  357  :  "  Hallucinantur  thcologi,  adulantur  iurisconsulti, 
rsuadc-nt  omnia  principibus  licere,  summamquc  eorura  et  liberam  esse 
potestatem. 


ALBERICUS   GENTILIS  121 

Finally,  having  conceived  of  a  "  societas  gentium  "  on  a  civil 
basis,  a  system  of  rules  freed  from  the  bonds  of  theological 
casuistry,  Gentilis  took  a  further  step — a  remarkable  one,  though 
a  corollary  flowing  from  his  general  thesis — and  included  in  this 
society  of  States  infidel  and  even  barbarian  communities.1  The 
common  opinion  of  writers  was  that  only  Catholic,  or,  at  most, 
Christian,  princes  could  be  vested  with  dominium ;  but  Gentilis 
held  that  heretics  and  infidels  could  legitimately  enjoy  the  right 
of  sovereignty  in  their  own  domains.  Heresy  or  infidelity  or 
even  idolatry  is  not  intrinsically  a  just  cause  of  war.2  Treaty 
relationships  may  be  established  with  peoples  of  this  character,3 
who  possess  also  the  right  of  legation.4  On  the  other  hand, 
those  who  have  no  religion  at  all  are  in  the  position  of  pirates,6 
as  the  natural  enemies  of  mankind,  and  are  therefore  outside  the 
pale  of  the  society  of  States  ;  they  are  on  the  level  of  the  lowest 
brutes  and  are  in  a  sense  opposed  to  God  and  to  nature,  and  con- 
sequently ought  to  be  warred  upon  and  compelled  to  follow  the 
ways  of  the  rest  of  mankind.6  As  to  brigands  and  other 
marauders,  it  was  also  a  universally  established  rule  that  they, 
like  pirates,  could  not  take  advantage  of  the  law  of  nations, 
"  neque  praedones  eo  iure  gentium  fruuntur  aut  piratae  ";7  and 
Gentilis  expresses  astonishment  at  the  contrary  assertion  of 
Hotman :  "  Ergo  miror  Hotmannum  adfirmare  voluisse  ius 
gentium  imo  et  cum  fugitivis  et  cum  praedonibus  esse."8 

2.  International  Belations  :  Freedom  of  Intercourse ;  Freedom 
of  the  Sea. — From  the  conception  of  the  world  as  a  community 
of  States,  autonomous  and  independent,  whose  relationships  are 
regularized,  whose  transactions  depend  upon  the  principle  of 
societas,  which  is  itself  of  the  essence  of  natural  law,  it  follows 
that,  subject  to  the  exercise  of  territorial  sovereignty,  both  the 
earth  and  the  sea  belong  to  all.  Hence  innocent  passage  over  a 

1  Victoria  had  already  in  a  modified  form  advanced  this  view,  in  his  dis- 
cussion of  the  rights  of  the  Spaniards  in  the  Indies  (Rdectiones  theologicae,  V. ). 

2  De  iure  belli,   I.  25.     Cf.  Victoria,  Rdectiones  theologicae,  V.  10.     (See 
further,  infra,  on  grounds  of  war.) 

3  De  iure  belli,  III.  19.  4  De  legationibus,  II.  11. 

5  De  iure  belli,  I.  4  ;  p.  21  :  "  Piratse  omnium  mortalium  hostes  sunt  com- 
munes." 

6  Ibid.,  I.  9  ;  p.  39  :  "  At  neque  nos  nunc  de  his  qui,  ferarum  modo  magis 
quam  hominum  viventes,  sine  ulla  omnino  religione  sunt  ;  hos  cnim  quasi 
piratas,  communes  hostes  omnium,  bello  persequendos,  et  cogendos  in  mores 
noininum  arbitrarer.     Hi  enim  vere  videntur  iniurii  omnibus  hominibus,  qui 
in   specie    hominum    agunt    brutorum    brutissimorum.  ...     Hi    sunt,    qui 
eigantum  more  bollum  gerunt  cum  Deo." 

7  De  leg-itionibm,  II.  8.  8  De  iure  belli,  I.  4  ;  p.  21. 


122  ALBERICUS   GENTILIS 

nation's  territory  cannot  legitimately  be  refused,  and  all  have 
the  right  to  undisturbed  maritime  navigation,  to  carry  on  com- 
mercial intercourse  in  general,  to  secure  shelter  in  foreign  ports, 
to  enjoy  the  right  of  market.  To  deny  such  natural  rights  with- 
out good  and  sufficient  cause  is  a  violation  of  the  fundamental 
principles  of  societas,  and  consequently  is  not  only  an  unlawful 
injury  to  the  party  directly  involved,  but  an  offence  against 
human  society  in  general.1  And  for  the  purpose  of  vindicating 
such  rights  war  may  be  justly  declared — "si  iter  negetur,  si 
pnrtubus,  si  commeatu,  si  mercatura,  si  commercio  excludimur."* 
That  is  why,  says  Grentilis,  war  was  made  on  the  Turks  :  their 
attempt  to  refuse  passage  to  the  Christians,  who  were  proceeding 
against  the  Saracens,  was  unjustifiable.3 

The  question  of  the  right  of  passage  was  long  one  of  the  great 
controversies  in  which  opinions  were  sharply  divided  and  re- 
corded practices  opposed  to  each  other.  Gentilis,  following  the 
view  of  St.  Augustine,  decides  in  the  affirmative,4  on  the  ground 
firstly  that  it  is  a  right  conferred  by  nature,  and  secondly,  that 
the  normal  condition  of  mankind  is  peace  and  amity,  not  war 
and  enmity.  The  right,  however,  is  not  an  unrestricted  one. 
Freedom  to  traverse  another's  field  does  not  imply  freedom  to 
hunt  there  without  the  owner's  permission  ;5  much  less  does  it 
imply  any  liberty  to  commit  acts  of  war  there  without  the  licence 
of  the  sovereign  of  the  territory.  It  is  customary,  however,  and 
in  better  order  to  obtain  a  safe-conduct  ;  so  that  having  become 
general,  the  practice  may  be  considered  to  have  been  incorporated 
into  the  law  of  nations. 

The  right  of  navigation  follows  from  the  principle  that  the  sea, 
like  the  air,  is  naturally  free  to  all,  and  is  the  exclusive  property 
of  no  one.6  Similarly,  shores,7  banks,  international  rivers,8  ports, 

i  DC.  iure  belli,  I.  19  ;  p.  84  :  "  Sano  qui  ista  tollit,  societatem  humanam 
Itedit. 

'.  !!>id::  l\  19'  PP-  81'  82-  3  Cf.  Advocatio  Hispanica,  I. 

Similarly  Bonot,  Uarbre,  dcs  bataittes,  held  that  a  sovereign  has  a  right  of 
passage  and  provisioning,  if  ho  undertakes  to  cross  peacefully,  to  pay  any 
expenses  involved,  and  make  good  any  damages  inflicted. 

r'  De  mre  belli,  I.  19  ;  p.  83  :Y'  Transire  per  agrum  alienum  fas  est.     Ingredi 
Kiuiii  alienum  venandi  caussa,  licet  item  per  gentium  ius,  et  ergo  nee  fucrint 
mush,  si  quitranseunt  venianonpetita,  necprohibiti.  .  .  .     Venatio  incom- 
nK8   n,°8t  Tr°'     Transitus  non  est  incommodus." 

Ibid.,  I.  19  ;  p.  86  :  "  Hoc  natura  omnibus  patet  ;  et  communis  eius  USUP 
omnibus  eat,  ut  aens.  Non  igitur  prohiberi  a  quoquam  potest." 

Adyocatto  Hispanica,  I.  6  :  "  Mare  etiam  est  commune  omnibus,  et  littus 
mans. 

"  De  inn  belli,  I.  19  ;  p.  86  :  "  Littora  item  a  natura  omnibus  vacant  ;  item 
npao  ;  item  flumina." 


ALBERICUS    GENTILIS  123 

harbours,  are  open  to  all  for  the  purpose  of  obtaining  shelter  and 
provisions,  and  assuring  the  various  reciprocal  rights  and  duties 
of  hospitality.  The  local  sovereign  has  only  the  right  of  super- 
vision and  jurisdiction.1  Hence  the  claim  of  peoples  to  the 
exclusive  sovereignty  over  adjacent  or  even  territorial  seas  is 
invalid — as,  for  example,  in  the  case  of  Venetian  pretensions  as 
to  the  Adriatic.  Any  attempt  on  the  part  of  the  people  of 
Venice  to  close  that  sea  on  the  ground  of  their  being  "posses- 
sores  'l  (as  was  alleged),  or  "domini  maris  "  (an  obviously  inde- 
fensible contention),  is  nothing  more  than  a  deliberate  usurpa- 
tion. Similarly  (it  may  be  recalled),  in  the  conflict  between 
England  and  Spain  in  1580,  when  the  Spanish  ambassador, 
Mendoza,  laid  before  Elizabeth  complaints  as  to  certain  acts  of 
Drake,  the  Queen  strongly  contended  that  all  were  at  liberty  to 
navigate  the  ocean,  as  the  use  of  the  sea,  like  that  of  the  air,  is 
common  to  all ;  that  neither  a  sovereign  nor  a  nation  could  claim 
exclusive  right  thereto,  since  its  occupation  is  contrary  both  to 
the  course  of  nature  and  to  public  usage.2  A  like  argument  was 
used  in  1602,  against  the  Danish  king's  claim  to  dominion  in  the 
northern  seas,  and  his  attempt  to  prohibit  fishing  without  a 
licence  from  him.3 

Finally,  as  to  the  right  of  commerce,  intercourse,  etc.,  Gentilis 
points  out  that  the  Spaniards  rightly  made  war  on  the  people  of 
the  New  World  for  refusing  to  trade  with  them.4  In  the  Anglo- 
Spanish  dispute,  above  referred  to,  the  Queen  reminded  the 
ambassador  that  his  countrymen  had  brought  upon  themselves 
the  injuries  complained  of  through  their  excluding  the  English, 
"contra  ius  gentium,"  from  commercial  intercourse  with  the 
West  Indies  ;  and  she  did  not  recognize  the  power  of  the  Pope 
to  bestow  these  territories  on  the  Spanish  king.5  To  constitute 
such  refusal  a  ground  for  war,  says  Gentilis,  the  prohibition  must 
be  a  general  one.  It  is  not  unlawful  to  forbid  the  importation  of 
certain  goods  deemed  to  be  injurious,  or  the  exportation  of  certain 
precious  products  like  gold  and  silver.  To  deny  to  foreigners 

1  De  iure  bdli,  p.  88. 

3  Camden's  Annals,  sub  ami.  1580,  p.  309,  ed.  1605. 

3  See  further  on  the  subject  the  article  on  Bynkershoek,  infra. 

4  Similarly  Victoria  (Rdectiones  theologicae,  V. )  maintained  that  the  Spaniards 
had  the  right  of  journeying  to  and  remaining  in  Indian  territory,  and  trading 
with  the  natives,  provided  no  injury  was  done.     In  case  of  opposition,  the 
Spaniards  were  entitled  to  make  war  in  self-defence,  and  occupy  the  territory 
of  the  conquered  people. 

5  Camden,  ibid. 


124  ALBERICUS  GENTILIS 

internal  trade,  whilst  allowing  them  access  to  the  coasts  or  fron- 
tiers, does  not  necessarily  amount  to  a  breach  of  the  ius  com- 
mercii. 

3.  International  Relations  :  Ambassadors.1 — After  defining 
ambassadors  and  pointing  out  their  public  and  sacred  nature,2 
Gcntilis  distinguishes  legations  according  to  the  character  of  the 
one  who  despatches  and  the  one  who  receives  them  ;  and  also 
according  to  the  object  in  view,  e.g.  free  embassy  ("libera 
legatio  "),3  where  a  person  bearing  the  title  of  ambassador  goes 
to  treat  of  his  own  affairs  ;  public  embassy,  including  "legatio 
negotii,"  extraordinary,  as  for  declaring  war  or  peace,  and 
"  legatio  officiosa,"  as  for  offering  compliments,  condolences,  etc.  ; 
temporary  missions,  in  which  case  the  "legati  temporarii  "  are 
called  "residentes."4 

The  reception  of  public  envoys  may  not  be  refused,  except  for 
a  just  and  good  cause  ;  but  a  sovereign  is  entitled  to  refuse  at 
any  time  titular,  "officious,  "and  temporary  embassies.5  Thus 
Henry  VII.  of  England  rightly  refused  to  receive  "residents." 
The  right  of  legation  is  suspended  at  the  commencement  of  hos- 
tilities ;  the  ambassadors  of  the  respective  belligerents  are  not  to 
be  treated  as  enemies,  but  are  to  be  sent  back  in  safety  to  their 
sovereigns.6  As  pirates  and  brigands  are  outside  the  law  of 
nations,  they  do  not  enjoy  the  ius  legationis  ;7  nor  do  rebels  as 
against  their  ruler.8  But  heretics  and  excommunicated  sovereigns 
and  peoples  cannot  merely  as  such  be  deprived  of  the  right,  for 
they  still  belong  to  the  society  of  States,  which  is  based  on 
political  and  not  on  religious  considerations.9  Thus  when  Pope 
Julius  II.  laid  Venice  under  an  interdict,  she  none  the  less  retained 
the  right,  as  guaranteed  by  the  law  of  nations.  Similarly,  em- 
bassies of  Protestant,  Mahometan,  and  Jewish  peoples  were 
always  admissible,  in  accordance  with  the  demands  of  natural 
reason.10  In  the  case  of  a  civil  war,  if  the  contending  factions 

1  Cf.  the  article  on  Bynkershoek,  and  that  on  Zouche. 

2  De  legationibus,  I.  2  :  "  .  .  .  qui  publico,  aut  sacratiori  nomine  ad  rem- 
puwicam  personamvo  aliam  sacratiorem  ob  rein  publicam,  aut  sacratiori 
missus  sine  imperio  est  rei  dicendae,  agendae  caussa." 

3  Cf.  the  Roman  practice,  International  Law  and  Custom  of  Ancient  Greece, 
and  Rome,  I.,  p.  308. 

'  De.  lecjationibus,  I.  5. 

5  Ibid.,  II.  12  :  "  Puto  autem  liberas,  legationes  officiosas,  temporarias  tales 


ease. 


Ibid.,  II.  13  :  "  Legati  abiro  iubentur,  si  eo  tempore  eos  in  regno  suo 
delete  prince ps  nolit." 
7  Ibid.,  II.  8.  s    IL  7.  „  n  n  10  n  u 


ALBEBICUS   GENTILIS  125 

are  approximately  equal  in  power  so  that  they  regard  each 
other  as  "  iusti  hostes  "  and  not  as  mere  rebels,1  they  may 
justifiably  despatch  ambassadors  to  one  another  and  to  other 
States.2 

The  most  important  matters  relating  to  ambassadors  are  the 
closely  connected  questions  of  inviolability  and  exterritoriality. 
On  this  portion  of  international  law  Gentilis  exerted  a  profound 
influence  both  by  his  personal  counsel  and  by  his  writings.  He 
holds  that  ambassadors  are  not  necessarily  everywhere  inviolable, 
but  only  within  the  territories  of  the  State  to  which  they  are 
accredited.3  Nevertheless  they  ought  in  all  cases  in  every 
quarter  to  be  courteously  treated,  as  they  are  promoters  of  peace 
and  good  understanding,  and  represent  the  persona  of  the  sover- 
eign or  the  commonwealth.4  Legates  sent  on  a  purely  sacred 
mission  are  always  and  everywhere  inviolable.  All  alike  are 
entitled  to  undisturbed  passage  over  any  intermediate  territory.5 
An  envoy  who  is  discovered  to  be  really  a  spy,6  or  to  be  engaged 
in  other  treacherous  conduct  towards  a  sovereign  or  nation,  or 
who  has  committed  any  other  criminal  offence,  ought  to  be  sent 
back  to  his  country,  and  not  subjected  to  any  harsher  personal 
treatment.7  If,  however,  the  ambassador  inflict  a  personal  injury 
on  the  sovereign,  he  is  liable  even  to  the  capital  penalty  ;  and  his 
own  prince  ought  in  such  a  case  to  surrender  him  to  the 
jurisdiction  of  the  offended  State.8  The  general  privilege 
of  security  extends  also  to  the  suite,  their  goods,  and  their 
residence.9 

As  to  the  civil  local  jurisdiction,  Gentilis  lays  down  certain 
restrictions  on  the  ambassador's  immunity.  In  questions  arising 
out  of  contracts  entered  into  on  foreign  territory  during  his  official 
residence  there,  he  is  to  be  subject,  like  any  other  domiciled  alien, 
to  the  local  tribunals  ;10  for,  otherwise,  he  might  be  able  to  take 
advantage  of  his  position  and  unjustly  deprive  a  subject  of  his 

1  De  legationibus,  II.  10  (title)  :  "  Nee  a  subditis  nee  ad  subditos  recte 
mittuntur  legati.--Npn  esse  ius  legationis  cum  suo  domino  subditis,  hinc 
patet,  quod  potent iori bus  et  dominis  pares  esse  non  possumus." 

2  II.  9. 

3  II.  3  :  "  Legati  ex  ipso  nomine  ad  alios  non  sunt  [tuti],  nisi  ad  quos  le- 
gantur.     Cum  aliis  ergo  iura  legationis  non  obtinent." 

4  II.  3.  s  Ibid. 

6  II.  4  :  "  Ceterum  cum  legato  speculatore  non  arbitror  agi  durius  posse, 
quam  ut  non  admittatur,  vel  expellatur  admissus." 

7  II.  18  :  "  .  .  .  quia  leeatus  quoque  principis  personam  ererit." 
*  II.  19.  9  II.  15. 

11  II.  16  :  "  De  omni  autem  contractu,  quern  tcmpore  legationis  iniit,  subiro 
eum  iudicium  volo." 


126  ALBERICUS   GENTILIS 

property,  and  hence  no  one  would  be  willing  to  make  any  engage- 
ment with  him.1 

The  view  of  Gentilis  expressed  here  respecting  the  ambas- 
sador's exemption  from  the  territorial  criminal  law  had  already 
been  advanced  by  him  in  1584,  when  he,  together  with  Hotman, 
was  consulted  on  the  Mendoza  affair.  The  Spanish  ambassador 
was,  on  Throckmorton's  confession,  charged  with  complicity  in 
the  plot  to  liberate  Mary  Stuart  and  depose  Elizabeth.  The 
English  Government  was  at  first  inclined  to  adopt  stringent 
measures  against  Mendoza,  some  of  the  members  of  the  Council 
arguing  that  "  in  vaine  he  putteth  himselfe  under  the  safeguard 
of  nations  which  violateth  the  la  we  of  nations."  However,  the 
opinion  of  Gentilis  prevailed,  in  spite  of  the  contrary  precedent 
of  Leslie,  Bishop  of  Ross  ;  and  the  Government  ordered  the 
expulsion  of  the  offending  envoy,  and  the  despatch  of  one  of 
the  Secretaries  to  the  Privy  Council  to  explain  to  the  Spanish 
sovereign  the  reason  for  this  action.2 

4.  International  Relations  :  Treaties. — Gentilis  emphasizes  the 
doctrine  that  a  king  exists  for  his  State,  and  not  the  State  for 
the  king — •"  non  regna  esse  propter  reges,  sed  reges  propter  regna 
factos  esse.";  Hence  certain  duties  are  imposed  upon  him,  and 
certain  restrictions  on  his  conduct  are  laid  down.  The  monarch 
has  always  to  consider  the  good  of  his  country,  and  not  merely 
his  own  personal  advantage.  He  is  not  the  absolute  proprietor 
of  his  dominions,  but  only  the  administrator  thereof,  the  "  tutor," 
the  "curator,"  the  " usufructuary."4  He  cannot  enter  into  any 
engagement  to  the  palpable  detriment  of  his  kingdom.5  He 
cannot  by  treaty  alienate  his  kingdom,  and  no  authority,  papal 
or  even  that  of  his  people,  can  confer  such  power  on  him.6  If 

1  Delegationibua,  II.  16.    In  regard  to  this  provision,  Gentilis  refers  to  the 
statements  of  Julian  and  Paulus  in  the  Digest,  and  was  perhaps  unduly 
influenced  by  certain  rules  of  Roman  law. 

2  Calendar  of  State  Papers,  Spanish,  1580-1586,  pp.  513-515  ;  Birch,  Memoirs 
of  the  Reign  of  Queen  Elizabeth,  I.  458  ;   Hotman,  The   Ambassador  (1603), 
pp.  103-106.     Opinions  on  the  extent  of  the  ambassador's  privilege  varied 
considerably  ;  but  it  may  be  pointed  out  that  even  before  1584  certain  writers 
hid  advocated  total  immunity  ;  e.g.  Ottaviano  Maggi,  De  legato  (1566),  Pierre 
Ayrault,  Uordre,  formalite  et  instruction  judiciaire  .  .  .  (1576).     [The  present 
writer  may  say  that,  in  common  with  all  students  of  the  earlier  history  of 
international  law,  he  is  much  indebted  to  the  writings  of  Professor  Nvs.l 

3  De  iure  belli,  I.  16  ;  p.  73. 

4  Ibid.,  III.  22  ;  p.  395.  5  i^d. 

6  Ibid..  III.  15;  p.  357:  "  Omnc  dedit  populus  imperium  et  potestatem 
sane  :  sed  ad  rocendum  quasi  homines,  non  ad  alicnandum  quasi  pecudes. 

.  .  Aut  num  plus  dedent  populus,  quam  ipse  habuit  ?  Ipse  populus  non 
id  poterat." 


ALBERICUS   GENTILIS  127 

such  a  convention  is  concluded,  the  successors  of  the  sovereign 
who  has  thus  acted  ultra  vires  are  not  bound  thereby.  A  prince 
is  entitled,  however,  to  dispose  of  tribute  and  other  such  sources 
of  profit.1  Only  despotic  rulers  like  the  Sultan,  whose  subjects 
are  no  better  than  slaves,  can  consent  to  such  alienations. 
Further,  a  ruler  can  make  no  stipulation  for  single  combat 
instead  of  regular  war  when  the  latter  has  become  necessary 
and  is  legitimate.2  A  treaty  concluded  by  the  sovereign  in 
parson  has  binding  force  as  soon  as  he  has  signed  it,  but  if  entered 
into  by  his  representative  it  is  not  binding  until  due  ratifica- 
tion.3 

Are  sovereigns  and  peoples  bound  by  the  legitimate  conven- 
tions of  their  predecessors  ?  Gentilis  says  that  the  common 
opinion  is  that  treaties  of  peace  are  in  general  binding  on  suc- 
cessors, in  the  same  manner  as  pecuniary  obligations  ;  but  not 
necessarily  so  pacts  of  friendship  and  alliance — on  the  ground 
that  the  nature  of  societas  implies  only  personal  relationships, 
wherefore  a  contracting  party  cannot  stipulate  for  the  continua- 
tion of  the  engagement  after  his  death.  But  such  a  distinction, 
urges  Gentilis,  is  to  be  rejected,  for  the  question  of  personal 
relationships  enters  into  private  undertakings  but  not  in  a  socieias 
of  a  public  character.  In  actual  practice,  however,  it  is  better 
for  successors  formally  to  renew  alliances  ;4  but  renewal  may  be 
inferred  from  a  variety  of  acts  or  words  or  even  from  acqui- 
escence.6 

Treaties  of  peace  must  be  so  clearly  and  definitely  drawn  up 
as  to  make  subsequent  controversies  thereon  impossible  ;6  and 
in  this  connection  Gentilis  devotes  two  chapters  to  consider  how 
certain  clauses,  stipulations,  and  terms  (e.g.  army,  fleet,  arms, 
fortification,  etc.)  ought  to  be  construed.7  Like  all  engagements 
of  sovereigns,  they  are  contracts  of  good  faith,  and  not  stricti 

1  De  iure  belli,  III.  22  ;  p.  395  :  "  Potest  princeps  vectigalia  et  alia  emolu- 
menta  alienate." 

2  Ibid.,  III.  15. 

3  Ibid.,  III.  23  ;  p.  403  :  "  Nee  satis  est  stipulatio  notarii  pro  absentibus  ; 
non  eos  enim  tenet,  nisi  secuta  ratificatione." 

4  Ibid.,  III.  22  ;  pp.  400,  401  :  "  Successores  tenentur,  si  contractus  sint  ex 
natura  et  consuetudine  principatus  ;  ut  isti  quidem  sunt  pacis  ct  foederum. 
...  At  probandum  est  maxime,  quod  et  fieri  consuevit,  ut  foodera  cum  suc- 
cessoribus  renoventur." 

5  Ibid.,  pp.  401,  402 :  "  Renovatur  porro  his  actis,  gestis,  quae  admitti  citra 
nomen  et  ius  societatis  non  valcnt.  ...     Ut  adfirmata  et  renovata  ceiiseatur. 
si  reliqui  in  foedere  pergant  lacite." 

6  IIL  14  ;  p.  347. 

7  III.  20,  21. 


128  ALBERICUS   GENTILIS 

iuris,  as  Baldus  claims.1  Before  the  time  of  Gentilis  it  was  gener- 
allv  held— and  the  doctrine  was  by  no  means  obsolete  in  his  day 

that  the  binding  force  of  treaties  depended  on  the  oath,  that 

the  Pope  could  compel  a  refractory  signatory  to  respect  his 
pledged  word,  and  that  infringements  were  ecclesiastical  offences.2 
Thus  in  the  Treaty  of  Arras  (1435)  Charles  VII.  specifically 
recognized  such  papal  sanction  ;  Edward  IV.  begged  the  Pope 
to  cancel  his  oath  ;  and  again  in  the  treaty  of  1514  Henry  VIII. 
and  Francis  I.  admitted  the  power  of  the  Pope's  Bull  to  enforce 
agreements  under  pain  of  excommunication.  Treaties  of  peace 
are  not  vitiated  through  fear — for  this  is  an  essential  concomitant 
of  war.3  The  engagements  of  captive  princes  are  binding  en 
them,  if  then-  capture  has  been  legitimately  effected  ;  but  their 
subjects  are  not  obliged  to  obey  them.4 

As  to  pacts  of  friendship  (amicitia)  and  alliance  (societas),  the 
first  imply  only  general  obligations  of  a  moral  character,  as,  for 
example,  the  furnishing  of  assistance,  whilst  the  second  are  of 
two  kinds,  eVt/^a^ia,  defensive,  and  tru/i/ta^ia,  both  defensive  and 
offensive.  But  a  pact  or  an  alliance  ceases  to  be  valid  if  an  illicit 
object  be  involved,  or  if  illegitimate  or  irregular  hostilities  aie  to 
be  made.6  Should  war  break  out  between  two  States,  to  both  of 
which  a  third  is  bound  by  treaties  of  friendship,  the  latter  ought 
to  be  guided,  where  conflicting  duties  appear,  by  certain  general 
considerations.  Aid  should  be  offered  in  order  to  equalize  as 
nearly  as  possible  the  condition  of  the  contending  parties,6  or 
given  to  the  State  having  greater  justice  on  its  side,7  but  if  there 
be  doubt  on  the  point,  then  the  prior  alliance  might  decide.8 
The  defending  State  has,  other  things  being  equal,  a  better  claim 
than  the  offending.9  Both  may  receive  aid  in  money,  provisions, 

1  De  iure  belli,  III.  14  ;  p.  347 :  "  Strict!  autem  iuris  contractum,  ut  transac- 
tionis,  dicit  Baldus.     At  ego  contrarium  docui.  .  .  .     Contractus  [principum] 
oinnes  sunt  bonae  fidei.     Est  omnis  principalis  tractatio  ex  bono  et  aequo  ; 
ortmis  consuetudinura  et  institutorum  gentium." 

2  Cf.   Martinus  Laudensis,  De  confoederationibus,   pace   et   conventionibus 
principum,  Quaest.  19  and  22. 

3  De  iure  belli,  III.  14  ;  p.  349  :  "  Metus  est  de  natura  victoriae  .  .  .  et 
ergo  servanda  pacta  ab  eo,  qui  sub  duello  vincitur  et  paciscitur ;  et  idem  de 
pact  is  dedititiorum  belli." 

4  III.  14  ;  p.  351  :  "  In  principe  captivo  hoc  putem,  non  esse  necesse  ut  ei 
obtemperent  subditi." 

5  III.  18  ;  p.  372  :  "  Neque  enim  rei  turpis  societas  intelligitur,  neque  con- 
foodorati  intelliguntur  ad  helium  illicitum." 

8  III.  18,  p.  374  :  "  Ut  uni  auxiliemur,  quum  nee  est  aliter  condicio  par 
sociorum."  ^  ?  III.  18  ;  p.  375  :"  Ut  causae  iustiori  auxiliemur." 

*   Ibid.  :  "  Inque  pari  causa  is  sit  potior  qui  est  tempore  prior." 
0  Ibid.,  p.  370  :  "  Ut  utrique  foederato,  bellum  gerenti  invicem,  non  sit 
auxilium  fercndum." 


ALBERlCtTS  GENTILIS  129 

etc.1  If  it  is  doubtful  which  of  the  belligerents  acts  more  in 
accordance  with  the  treaty,  each  appealing  to  it  in  support  of  its 
claim,  no  aid  ought  to  be  offered  to  either  ;2  and  similarly,  if 
neither  side  can  be  satisfied  and  there  is  no  valid  reason  for 
assisting  one  rather  than  the  other.3 

Is  it  legitimate  to  conclude  pacts  with  infidel  peoples  ?  Treaties 
of  commerce  are  allowable,  for  such  depend  on  the  law  of 
nature,  the  fundamental  law  of  men  at  large.4  As  to  other 
contractual  relationships,  it  is  lawful  to  hold  people  of  a 
different  religion  in  an  unequal  league,  e.g.  as  tributaries  ;5 
and,  inversely,  a  league  of  this  nature  is  legitimate  when  a 
Christian  nation  is  forcibly  subjected  to  infidels.6  Under  no 
circumstances  may  an  alliance  be  made  with  infidels  as  against 
believers  ;7  hence  the  league  of  Francis  I.  with  the  Turks  must 
be  condemned. 

With  regard  to  facts  vitiating  conventions,  and  to  circum- 
stances in  which  treaties  may  be  renounced,  Gentilis  says  that, 
as  in  the  case  of  private  contracts,  fraudulent  misrepresentation 
and  substantial  error  avoid  treaties.8  Otherwise  the  public  com- 
pacts of  sovereigns  are  to  be  interpreted  by  the  law  of  nations 
and  not  by  the  civil  law.  Thus  the  fact  that  one  of  the  signa- 
tories is  a  minor  is  not  a  valid  reason  for  renouncing  the  treaty  ; 
so  that  the  claim  of  the  young  King  Edward  III.  respecting  his 
treaty  with  the  Scots  was  invalid.  In  international  compacts 
the  question  in  such  cases  is  not  minority,  but  actual  exercise 
of  sovereignty.9  The  clause  "rebus  sic  stantibus  "  is  always 
understood  ;10  a  radical  change  of  circumstances  or  the  occurrence 
of  new  disputes  may  excuse  the  performance  of  one  or  other  of 
the  conditions  previously  laid  down. 

1  De  iure  belli,  III.  18;  p.  377  :  "Quod  si  tamen  auxilia  essent  alterius 
generis,  ut  coinmeatuum,  pecuniaruin  ;  tuin  afferri  utrique  possent  et  vero 
deberent." 

2  P.  376  :  "  Quum  et  est  dubium,  quis  duorum  pluriumve  petitorum  agat 
pro  iure  foedoris,  quod  quisque  pro  se  citant  .  .  .  ut  uemmi  auxilium  prao- 
stetur." 

3  P.  378  :  "  Si  foederatus  nequit  utrique  satisfaccre  :  et  causa  non  est  cur 
uni  magis  quam  alteri  satisfiat  :  ut  neutri  auxilia  ferantur.'5 

4  III.  19  ;  p.  384  :  "  Conunercium  non  interdicitur  cum  infidelibus  .  .  .  ot 
lex  omnibus  humana   iubet   coinmercium   cum    hominibus    omnibus.  .  .  . 
Dico  licitum  foodus  universale  commerciorum." 

5  III.  19  ;  p.  384.  6  P.  385. 

7  P.  385.  8  III.  14  ;  p.  351. 

9  III.  14  ;  p.  351  :  "  Sed  quid  si  foedus  percussum  est  cum  ininore  ?  Et 
Edvardus  tertius  Angliao  negabat  sefoedere  teneri,  quod  se  ininore  cum  Scotis 
ictum  erat.  Atquo  hio  tenendum  sic  est,  non  eum  e^se  mlnorcm,  qui  iure 
regnandi  apius  regno  est  et  niimeribus  regni."  1J  Ibid. 

10 


130  ALBERICUS   GENTILIS 

A  treaty  is  violated  if  the  State,  and  not  merely  private  sub- 
jects, deliberately  acts  in  contravention  of  any  clause.  If  one 
party  conducts  an  expedition  against  piratical  subjects  of  the 
other,1  or  offers  asylum  to  its  exiles  when  not  specifically  pro- 
hibited in  the  convention,  there  will  be  no  breach.  It  is  other- 
wise if  enemies  are  knowingly  harboured,  or  the  surrender  of 
deserters  and  other  fugitives  is  refused  on  demand  being  made.2 
As  every  treaty  is  one  and  indivisible,  it  may  be  repudiated  in 
toto  when  any  one  of  the  conditions  is  not  fulfilled  by  the  other 
side,  or  when  its  execution  bacomes  impossible.  Necessity  and 
vis  maior  are  sufficient  grounds  for  non-performance  ;  but  in 
every  such  case  the  alleged  cause  must  be  just,  and  not  an  excuse 
for  evasion.3  Wilful  renunciation  exposes  the  offending  party  to 
the  vengeance  of  the  other  :  though  it  does  not  entitle  that  other 
to  resort  to  acts  of  perfidy  in  subsequent  negotiations  with  the 
treaty-breaking  State. 

1.  Character  and  Aim  of  War;  Conditions  of  Just  War. — 
Gcntilis  points  out  that  the  regulation  of  war  depends  on  prac- 
tices definitely  agreed  upon,  on  general  customs  tacitly  followed, 
and  on  natural  law  ;  but  not,  as  was  the  case  in  earlier  tunes,  on 
Roman  and  ecclesiastical  law.  War  is  not  the  normal  condition 
of  peoples  ;  it  behoves  all  to  try  always  pacific  settlement  by 
means  of  diplomatic  negotiation  and  conference,  "disceptatio," 
by  submission  to  arbitration  (of  which  mode  of  settling  conflicts 
various  examples  are  cited),  or  by  other  peaceful  means  indicated 
by  natural  reason,  rather  than  by  rushing  to  arms,  or  resorting 
to  other  violent  remedies.4 

His  definition  of  war  is  the  briefest  and  most  precise  that 
has  ever  been  enunciated  :  "  Bellum  est  publicorum  armorum 
iusta  contentio."5  This  includes  the  three  essential  elements  : 
(1)  a  public  contest  between  sovereigns  (hence  excluding 
private  differences,  "rixa,  pugna,  inimicitia  privatorum  ")6— 
war  being  justified  only  by  the  absence  of  a  superior  tribunal 
competent  to  settle  the  dispute  and  able  to  enforce  its  judg- 

1  De  iure  belli,  III.  23  ;  p.  406. 

2  P.  407. 

3  I^;.^*  '  P-  ^'(> :  "  Focdus  lion  violator,  si  ab  eo  disceditur  per  rationem 
iuslam  '';  p.  414  :      ...  Qui  promiltit  non  offendero,  is  subintelligit  excep- 
tioncm,  '  Nisi  causa  superveniat  :  Nisi  culpa  accesserit  eius  cui  proinissio  ista 
fat  et  p.ictio  foedcris  :  Rebus  sic  stantibus.'  " 

4  L  3  ;  p.  19  :  "  Voluntario  compromisso  antea  ost  disceptandum,  et  ratione 
naturali." 

6L2;p.  10.  «  I.  2;  p.  11. 


ALBERICUS   GENTILIS  131 

ment  j1  (2)  by  force  of  arms  ;  (3)  begun  and  conducted  in  a 
just  and  regular  manner,  in  conformity  with  the  law  generally 
established  and  adopted  by  both  belligerents2  (hence  excluding 
irregular  hostilities,  like  "excursiones,"  "populationes,"  "prae- 
dationes,"  "latrocinia,"3  which  are  the  acts  of  brigands  and 
freebooters — "latrunculi,"  "praedones" — and  not  of  regular 
enemies,  "iusti  hostes  ").4  The  definition  of  Grotius,  who  speaks 
of  the  condition  of  parties  maintaining  a  contest  by  force,6  is 
too  wide  and  indefinite,  and  may  also  imply  conflicts  like 
private  war  or  single  combats. 

A  iustum  bellum  is  not  required  as  against  pirates  and  brigands 
or  rebels,6  who,  wilfully  withdrawing  from  the  human  community 
and  from  the  institutions  of  human  law,  have  forfeited  all  rights 
guaranteed  thereby.  Even  formal  promises  made  to  them  need 
not  be  kept. 

The  justice  of  a  war  depends  on  the  legitimacy  and  sufficiency 
of  the  alleged  cause.  A  war  is  justifiable  if  made  on  the  grounds 
of  necessity,7  e.g.  self-defence,  public  safety,  and  sometimes  on 
the  grounds  of  "  utility  "  and  "honour."  Justice  may  exist  on 
both  sides,  if  it  is  doubtful  which  has  the  superior  right,  as  Vic- 
toria and  others  held.8  Several  writers  before  Gentilis,  e.g. 
Baldus,  Joannes  Lupus,  Arias,  Victoria,  Wilhelmus  Mathiae,9 
had  laid  down  the  conditions  of  a  just  war,  and  had  invariably 
insisted  on  the  criterion  of  necessity,  apart  from  just  and  suffi- 
cient causes  and  regular  proceedings.  In  some  cases  difference 
of  religion  as  an  alleged  ground  was  condemned,  in  others  pursuit 
of  self-aggrandisement  and  vainglory,  in  others,  again,  slight 
injury.  From  tune  to  time  the  conditions  of  lawful  war  were 
in  a  more  or  less  fragmentary  manner  investigated,  and  usually 
from  the  point  of  view  of  war  against  Christian  nations.  But 
no  one  before  Gentilis  or  at  the  time  he  wrote  examined  all  these 

1  De  iure  belli,  I.  3  ;  p.  13  :  "  .  .  .  quoniam  inter  summos  principes  popu- 
losve  liberos  fori  disceptationes  esse  nequeunt,  nisi  inter  volentes  .  .  .  non  est 

Sincipi  in  terris  iudex."    (This  point  had  been  emphasized  by  Pranciscus  Arias, 
e  betto  et  eius  iustitia  tractatus,  in  the  first  half  of  the  sixteenth  century.) 

2  I.  2  ;  p.  12  :  "  Sic  iustum,  non  solum  quod  a  iure  est,  sed  et  quod  est  ex 
omni  parte  perfectum,  significat."  3  I.  2  ;  p.  13. 

4  I.  3  ;  p.  13  :     (In  this  connection  Gentilis  accepts  the  definitions  and 
distinctions  laid  down  by  Pomponius  and  Ulpian.) 

5  De  iure  belli  et  pads,  I.,  i.  2. 

6  Deiurebdli,  I.  4 ;  p.  20  :  "  Curn  piratis  et  latrunculis  bellum  non  est";  p.  21 : 
"...  ius  belli  a  gentium  iure  est ;  et  tales  non  fruuntur  illo  iure,  cui  hostes 
sunt." 

7  I.  3  ;  p.  19  :  "  Itaque  conclude  quod  si  necessitas  non  subsit,  bellum  esse 
iustum  nee  possit." 

8  I.  6  ;  p.  28.  tf  Libdlus  de  betto  iusto  et  Unto  .  .  .  (Antwerp,  1514). 


132  ALBERICTIS  GENT1LIS 

questions  as  fully,  as  logically,  as  rationally,  and  as  impartially 
as  he  did. 

2.  Grounds  for  War. — Religious  difference,  as  in  the  case  of 
heretic  or  infidel  nations,  is  not  a  ground  for  war  ;  for  no  one 
should  be  compelled  to  accept  another  faith  unwillingly.1  Moral 
persuasion  and  intellectual  argument  are  justifiable  for  bringing 
others  over  to  our  faith,  but  not  so  physical  force — as  religion 
has  to  do  with  the  mind  and  the  free  will.2  Religion  is,  as  it 
were,  a  union  of  God  and  man  ;3  and  God  alone  has  dominion 
over  the  soul.  Hence  hostilities  against  heretics  and  infidels, 
simply  because  they  do  not  share  our  faith,  are  unjust,  as  Vic- 
toria maintained.4  Gentilis  criticizes  Baldus  in  that  he  confused 
the  spiritual  motive  of  the  Church  with  the  temporal  objects  in 
her  wars  against  infidels,  and  confutes  his  assertion  that  infidel 
kings  cannot  exercise  legal  sovereignty  over  their  territories. 
"  Sacred  "  wars  are  justifiable  only  on  the  ground  of  urgent 
necessity  ;  though  an  exception  might  perhaps  be  made  in  the 
case  of  wars  against  people  without  religion  altogether,  who  are 
thus  practically  on  a  level — so  far  as  an  ordered  "societas  gen- 
tium "  is  concerned — with  pirates  and  other  enemies  of  mankind 
at  large.5  Further,  a  sovereign  cannot  by  war  compel  his  sub- 
jects to  adopt  his  religion  ;6  they  may  lawfully  change  their  faith 
if  the  State  does  not  thereby  suffer  any  real  injury — "  nisi  quod 
detriment!  illinc  respublica  capiat."7  And  the  sovereign  enjoys 
a  similar  liberty.8 

Just  as  in  private  transactions  the  right  of  action  may  be 
barred  by  lapse  of  time,  so  in  international  affairs  the  principle 
of  prescription  may  operate  to  extinguish  old  causes  of  war  and 
other  claims.9  Thus  the  Emperor  is  not  entitled  to  regain  pos- 
session by  force  of  arms  of  the  territories  which  were  formerly 
part  of  the  Roman  Empire.  The  frequently  advanced  theory  of 
the  Holy  Roman  Empire  is  absurd  ;  the  "imperium  romanum," 
says  Gentilis,  is  no  more,  and  a  new  order  of  things  now  exists.10 
The  decease  of  a  prince  does  not  necessarily  cause  the  rule  as  to 

i  De  iure  belli,  I.  9. 

a  I.  9  ;  p.  36  :  "  Religio  autom  ab  animo  est,  et  voluntate."  (This  question 
may  be  of  no  account  nowadays,  but  it  was  of  supreme  importance  when 
Gentilis  wrote  his  work.) 

3  I.  9  ;  p.  37  :  "  Coniugium  quoddam  Dei  et  hominis  est  religio  ";  p.  39  : 
"  Religio  erga  Deum  est. 

4  Relectiones  theologicae,  V.  10. 

5  De  iure  belli,  I.  9;  p.  39.  «  I.  10.  ?  2bid.  8  I.  11. 

9  1. 22  ;  p.  99  :  "...  Si  vetustae  causae  afferri  possunt  ad  bellum  faciendum. 
I  n  qua  ego  sane  arbitror,  non  afferri  posse."  1°  1.23. 


ALBERICUS   GENTILIS  133 

prescription  to  operate  ;  his  successors  may  justly  be  liable  to  be 
warred  upon  if  he  refuses  to  make  reparation  for  an  unatoned 
offence  on  the  part  of  the  predecessor.1 

As  to  the  legitimate  causes  of  war,  that  is,  those  which 
"  materiam  belli  praebent,"2  they  may  be  divided  into  three  main 
classes  :  divine,  natural,  human.3  Under  the  first  head  may  be 
mentioned  the  express  command  of  God,4  as  in  the  case  of  the 
divine  injunctions  to  the  Israelites,  the  utterances  of  the  oracles 
and  soothsayers  in  Greece  and  Rome.  "  Natural  "  causes5  have 
sometimes  been  urged  (e.g.  by  the  Jews  against  the  Canaanites, 
by  the  Greeks  and  Romans  against  the  "barbarians,"  by  the 
Christians  against  the  Saracens,  etc.),  on  the  ground  of  some 
alleged  innate  hostility  between  certain  classes  of  men.  But, 
says  Gentilis,  this  is  a  false  assumption  ;  all  men  belong  to  one 
class — the  human  species  ;  there  is  no  fundamental  antagonism 
between  them  ;  rather  their  natural  kinship  is  self-evident  and 
predominant.6  The  Christian  wars  against  the  Turks  were 
lawful,  not  for  religious  reasons,  or  for  reasons  of  natural  enmity, 
but  because  of  their  perfidious,  harassing,  hostile  conduct ; 
whereas  had  they  remained  peaceful  any  attack  on  them  would 
have  been  illegitimate.7 

Self-defence  is  an  instinct  implanted  in  all  living  beings,  and 
is  a  "  natural  "  reason  for  taking  up  arms.8  Self-defence  may  be 
immediate,  "necessaria  defensio."  It  may  be  anticipatory, 
"utilis  defensio,"  against  an  attack  prepared  or  meditated,9  or 
even  when  it  is  probable  ;  in  other  words,  when  balance  of  power 
is  to  be  maintained.  To  render  anticipatory  steps  lawful,  how- 
ever, there  must  be  reasonable  cause  for  apprehension.  Hence, 
resistance  may  be  justly  offered  to  the  Turks  and  to  the  Spaniards, 
as  it  is  manifest  they  are  aiming  at  universal  dominion.10  Further, 
there  is  "  honesta  defensio,"11  which  permits  help  to  be  given  to  a 

1  De  iure  belli,  I.  24.  2  I.  7  ;  p.  33. 

3  Ibid.  ;  just  as  law  was  commonly  divided  into  "  divinum,"  "  naturale," 
and  "  humanum  ";  cf.  Victoria,  Rdectiones  theologicae,  V.  1. 

4  I  8.  si.  12. 

6  I.  12  ;  pp.  52,  53  :  "  Et  itaque  hominibus  cum  hpminibus  non  est  repug- 
nantia    per   naturam.     Sed   neque   antipathia   est   inter  animalia   eiusdem 
speciei." 

7  I.  12  ;  p.  55  :  "  Non  inferendum  bellum  quiescentibus,  pacem  colentibus, 
in  nos  nihil  molientibus." 

8  I.  13  ;  p.  56  :  "  Vim  vi  repellere,  omnes  leges,  ct  omnia  iura  permittunt. 
Lex  una,  et  perpetua,  salutem  omni  ratione  defendere." 

9  I.  14  ;  p.  57  :  '  Utilem  dico  defensionem,  quum  movemus  nos  bellum, 
verentes,  in  ipsi  bello  petamur." 

10  I.  14.  "  I.  15. 


134  ALBERICUS  GENTILIS 

nation  against  its  unjust  aggressors  :l  for  the  "generis  humani 
societas  "  is  a  unity,  the  world  is  one  body,  "  mundus  unum  est 
corpus."2  Gentilis  quotes  with  approbation  the  statement  of 
Ambrose3  as  a  principle  of  canon  law  :  "  Plena  est  iustitia  quae 
defendit  infirmos."4  May  we  defend  the  subjects  of  another 
State  as  against  their  sovereign  ?6  If  the  dispute  between  them 
is  a  private  one,  it  is  a  question  for  their  own  tribunals  ;  but  in  a 
public  conflict,  in  which  a  great  number  of  subjects  rebel  against 
their  ruler,  we  may  intervene  if  it  is  clear  that  he  is  grossly  unjust 
or  cruel ;  hence  the  justifiable  intervention  of  England  in  the 
Netherlands,  especially  so  in  view  of  the  ties  of  old  friendship 
and  consanguinity.  Gentilis  heartily  approves  of  the  Earl  of 
Leicester's  policy  in  favour  of  the  Belgians,  and  agrees  with 
Justus  Lipsius  that  Spanish  violence  would  be  left  unrestrained 
if  that  part  of  the  continent  fell.6 

Apart  from  the  law  of  defence  in  general,  which  concerns  rather 
the  warding  off  of  war  than  the  making  of  it,  there  are  "  natural  " 
causes  for  declaring  hostilities.7  These  grounds  refer  to  motives 
of  necessity,  utility,  and  honour.8  Examples  of  necessity  are — 
Avhen  foreigners  are  refused  civil  rights,  or  if  the  immigration  to 
and  occupation  of  vacant  territory  be  interfered  with  ;  of  utility 
— avenging  injuries  received  and  so  making  it  impossible  for 
others  to  be  committed,9  vindicating  violated  natural  rights,  such 
as  the  rights  of  intercourse,  passage,  navigation,  shelter,10  in  the 
absence  of  good  reasons  for  refusal ;  of  honour — making  war  not 
merely  on  one's  own  account,  but  "  communi  ratione  et  pro  aliis, " 
e.g.  against  cannibals,  people  who  practise  immolation,  or  indulge 
in  bestial  vice.u 

Finally,  "human"  causes  of  war  appear  when  an  offended 
State  proceeds  to  exact  reparation  for  violated  positive  rights.12 
The  alleged  reason  must  not,  however,  be  a  trifling  one,  "levis 
causa  ";  one  must  not  rush  to  arms  on  the  least  provocation, 
but  only  when  war  is  really  necessary.  Moreover,  the  violation 
of  these  rights  must  be  the  work  of  sovereigns  or  peoples  ;  for 
the  acts  of  private  subjects  are  not  necessarily  the  acts  of  their 

1  De  iure  belli,  I.  15  ;  p.  66  :  "  Non  aliena  homini  res  est  hominum  tueri  rem 
ct  salutem."  2  Ibid.,  p.  64.  3  De  off.,  I.  27 

I.  15  ;  p.  68.  ^  6  I.  16.  «  Ibid  7  I.  17. 

8  1. 17  ;  p.  75  :  "  Atque  bellum  quidem  infertur  eodem  modo,  aut  necessarie, 
nut  utiliter,  aut  honeste." 

•  I.  18  :  p.  79.  10  L  19  .  pp   glj  82  n  j   25 

[.  20  ;  p.  89  :  "  Quura  violate  aliquo  iure  hominum  ad  bellum  descen- 
ditur. 


ALBERICUS   GENTILIS  135 

State,  unless  it  acquiesces  when  several  offences  have  been  com- 
mitted.1 

3.  Conduct  of  War. — Not  only  must  the  cause  of  war  be  just, 
but  the  war  must  be  begun  and  conducted  justly  ;  otherwise  it 
would  be  as  wrongful  and  odious  as  murder.2  Public  declaration 
is  necessary,  and  a  certain  delay  is  to  be  thereafter  made,  as  in 
the  Roman  rerum  repetitio,  in  order  to  give  an  opportunity  for 
peaceful  settlement.3  Proclamation  may,  of  course,  be  omitted 
in  the  case  of  a  sovereign  as  against  his  rebel  subjects,  or  in  that 
of  a  suzerain  as  against  his  subordinate  rulers.4  An  immediate 
effect  of  declared  war  is  the  cessation  of  commercial  relationships.5 

The  employment  of  assassins  is  unlawful  ;6  of  spies  lawful,  but 
at  the  risk  of  their  lives  ;  similarly  of  traitors  as  against  traitors.7 
The  use  of  poison,8  magic  arts,  serpents,  savage  beasts,  is  for- 
bidden ;  of  elephants,  horses,  dogs,  allowed.9  Stratagems  are 
permissible,10  but  these  do  not  include  perfidious  conduct ;  both 
acts  and  pledged  words  must  be  bonae  fidei,"11  apart  from  this  there 
may  be  cases  in  which  it  would  be  justifiable  to  deceive  the 
enemy  by  a  lie,  e.g.  as  Themistocles  did.13 

Gentilis  approves  of  the  opinion  of  Polybius13  that  the  laws  of 
war  psrmit  the  destruction  of  fortresses,  towns,14  villas,  gardens, 
ships,  productions,  in  order  to  weaken  the  enemy  and  bring  the 
conflict  to  a  speedy  conclusion  ;  but  all  useless  destruction,  e.g., 
of  temples,  porticos,  statues,  fruit-bearing  trees,  and  other  "res 
innoxiae,"  and  all  violation  of  sacred  objects,  e.g.  altars, 
sepulchres,  must  be  condemned.15  He  differs  frcm  Polybius 

1  De  iure  belli,  I.  21  ;  p.  94  :  "  Non  imputatur  universitati  delictum  singu- 
lorum";  p.  96,  "...  civitatem  teneri  pro  delictis  civium  non  momentaneis, 
sed  successivis,  continuatis." 

2  II.  2  ;  p.  133  :  "  Et  iniustum,  et  detestabile,  et  internecinum  bellum  est  : 
id  est,  quod  nulla  lege  belli,  sed  pro  libidine  geritur  ;  et  in  quo  omnia  iura 
belli  merito  cessare  videntur."  3  II.  1  ;  p.  124. 

4  II.  2.  5  I.  21  ;  p.  97.  6  II.  8.  7  II.  9. 

8  Other  writers  were  in  this  respect  less  humane,  e.g.,  Michel  d'Amboise, 
Le  guidon  des  gens  de  guerre  (1543),  who  says  one  may  "  gaster,  infester,  in- 
toxiquer  et  empoisonner  les  eaues  des  ennemys." 

9  De  iure  belli,  II.  6,  7.  10  II.  3.  u  II.  4. 

12  II.  5  (in  accordance  with  the  doctrines  of  Gratian,  Decretum,  II.  23.  11.  2, 
and  Thomas  Aquinas,  Summa  Theologiae,  II.  40.  3). 

13  Of.  International  Law  and  Custom  of  Ancient  Greece  and  Rome,  II.,  pp.  248 
et  seq. 

14  Belli,  writing  in  1558,  was  against  the  destruction  of  towns,  in  the  absence 
of  serious  offence  on  the  part  of  the  enemy  :  "  Non  deberent  urbes  diripi,  nisi 
pro  magno  flagitio  ..."  (De  re  militari,  IV.  8). 

15  De  iure  belli,  II.  23;  p.  261  :  "  Bellum  certe  neque  adyersusDeum,neque 
adversus  res  sacras,  sed  est  adversus  armatos."     Thus,  in  the  instructions 
given  to  the  Earl  of  Essex,  June,  1597  (the  work  of  Gentilis  had  already  been 
published  in  London  by  1589),  the  violation  of  hospitals  and  all  sacred  places 
was  forbidden, 


136  ALBERICT7S   GENTILIS 

however,  in  allowing  temples  to  be  destroyed  in  certain  circum- 
stances :  by  way  of  retaliation,  if  the  enemy  does  not  respect 
them  or  has  not  done  so  in  a  previous  war  ;  if  the  enemy  has 
already  profaned  them  ;  and  if  they  are  an  impediment  to  vic- 
tors-.1 As  against  barbarians,  and  in  cases  of  exceptional  urgency, 
such  usually  forbidden  acts  may  be  lawful.2 

With  regard  to  the  person  of  the  enemy,  it  is  laid  down  that 
non-combatants,  including  women,  children,  harmless  and  un- 
defended persons,  peaceful  peasants3  (who  are  held  to  be  in  the 
same  position  as  foreign  merchants),4  are  exempt  from  the 
ordinary  hostile  treatment.  Suppliants  seeking  refuge  in  sacred 
places  are  by  the  unanimous  opinion  of  the  world  considered 
inviolable.6  Hostages  are  not  in  the  position  of  prisoners  of 
war,  though  they  are  debarred  from  making  a  will.  They  are 
not  to  suffer  for  the  breach  of  faith  of  their  countrymen.6  Fugi- 
tive hostages  may  be  put  to  death  ;  to  receive  them  is  an  offence 
against  the  law  of  nations.7  Both  natural  and  divine  law  com- 
mand that  prisoners  are  not  to  be  put  to  death  ;  the  practice  has 
sometimes  been  otherwise,  but  not  everything  so  permitted  is  to 
be  approved.8  Rigorous  treatment,  however,  may  be  resorted 
to  in  exceptional  cases,  e.g.  by  way  of  reprisal,  where  captives 
had  inflicted  injury  on  their  captors,  or  had  used  treachery  and 
violated  the  laws  of  war,  where  released  prisoners  have  been 
taken  a  second  time.9  A  man  is  not  a  prisoner  until  led  "  intra 
praesidia,"  but  one  who  has  surrendered  before  being  brought 
there  is  not  to  be  slain  if  he  lays  down  his  arms  and  does  not 
attempt  to  escape.  Voluntary  surrender  is  a  protection,  and 

1  De  iure  belli,  II.  23  ;  p.  264. 

2  Cf.  Victoria  (Rdectiones  theologicae,  VI.  52),  who  emphasizes  that  excesses 
are  to  be  avoided,  unless  absolutely  demanded  by  "  necessitas." 

*  De  inre  belli,  II.  21.     Similarly,  Victoria  (Rdectiones  thedogioae,  VI.  36) 
ts  on  tho  protection  of  "  innocentes,"  including  "innoxii  agricolae,  gens 
Jgata  et  pacifica."     Belli  does  not  except  women  and  children.     It  may  be 
recalle'1  that  when  Leicester  took  command  of  the  forces  in  the  Netherlands, 
1684,  it  was  laid  down  in  the  Laws  and  Ordinances  :  "That  no  man  .  .  .  shal 
lay  violent  handes  upon  any  woman  with  childe,  or  lying  in  childebed,  olde 
ns,  widowes,  yong  virgines,  or  babes,  without  especiall  order  from  the 
KK>TS     ttC'  UP°n  PamC  °f  doath"  (State  PaPers>  Domestic,  Elizabeth,  cclxiii. 


II.  22.     See  infra  as  to  tho  position  of  foreign  merchants  within  the 
territory  of  the  belligerents. 

6  IL  20.     The  directions  to  the  Earl  of  Essex  were  more  stringent  :  those 
r  asylum  in  hospitals  or  churches  could    be  captured,  if  they  were 
worthy  to  be  taken  as  a  prisoner"  (State  Papers,  loc.  cit.). 

the  same  effect  writes  Victoria.  7  j)e  iure  ^i,  II.  19. 

11.  10,  where  he  quotes  Paulus  (Digwt,  L  17,  144  :  "  Non  omme,  quod  licet, 
liono.it  um  est    ).  e  jj   j§ 


ALBERICUS   GENTILIS  137 

should  always  be  accepted,  unless  there  are  urgent  reasons  to 
the  contrary.  Capitulation  by  the  commander,  or  by  the  majority 
of  the  forces,  protects  those  who  were  opposed  to  submission.1 
Exchange  of  prisoners  must  be  made  equitably  and  bona  fide. 
Ransom  ought  not  to  be  excessive.  If  a  liberated  prisoner  die 
before  his  ransom  is  paid,  it  is  due  from  his  heir.2  When  a 
prisoner  is  released  on  his  promising  not  to  take  part  in  that 
war  against  his  captors,  such  promise  is  binding  ;  but  not  neces- 
sarily so,  if  his  undertaking  is  prejudicial  to  his  State  or  contrary 
to  military  law.  In  the  latter  case  jurists  commonly  hold  that 
the  liberated  prisoner  ought  to  return  to  captivity.3  A  captive 
who  regains  his  liberty  has  the  right  of  postliminium. 

Commanders-in-Chief  (or,  in  their  absence,  inferior  officers)  may 
enter  into  military  conventions,  which  are  binding  if  they  are 
within  the  limits  of  their  powers  and  are  ratified.  Such  powers 
are  in  general  restricted  to  matters  relating  to  military  opeia- 
tions,  and  do  not  include  that  of  establishing  a  definitive  peace.4 
Truces  may  be  made  for  the  burial  of  the  dead,  which  is  demanded 
by  natural  and  divine  law  and  the  universal  consensus  of 
humanity,5  and  for  the  exchange  and  liberation  of  prisoners. 
The  unauthorized  act  of  an  individual  does  not  amount  to  a 
breach  of  truce  ;  but  the  offender  ought  to  be  surrendered  for 
punishment.  During  a  truce  forces  are  not  to  be  surreptitiously 
advanced  or  withdrawn.  Safe-conducts  are  based  on  good  faith  ; 
violation  by  one  side  permits  of  similar  retaliation  by  the  other.6 
All  these  agreements  and  guarantees  must  be  free  from  evasive 
intentions,  verbal  subtlety,  captious  interpretation,  and  every- 
thing else  which  is  inconsistent  with  true  bona  fides? 

4.  Conclusion  of  War. — The  obligation  imposed  on  belligerents 
to  avoid  excesses  and  observe  "honestas"  (honour,  justice, 
humanity)  is  likewise  applicable  to  the  victor,  when  he  has  the 
conquered  in  his  power.  Generally  the  victor's  conduct  will 
depend  on  the  seriousness  of  the  injury  received,  the  amount  cf 
damages  suffered,  the  necessity  of  insuring  ultimate  security. 
To  go  beyond  such  limits  is  unjust ;  for  war  is  made  not  for  its 

1  De  iure  belli,  II.  17.  2  II.  15.  3  II.  11. 

4  II.  10  ;  p.  172  :  "  Quod  igitur  bellicum  est,  id  duccs  tractent  belli,  non 
aliud." 

5  II.  24  ;  p.  268  :  "  Hoc  est  gentium  et  humanitatig  ius." 

7  II.  4  ;  pp.  136,  137  :  "  .  .  .  Et  valde  respuunt  scrupulosas  interpreta- 
tiones,  disputationes  de  apicibus  iuris,  id  est,  de  subtilitatibus  ;  et  ab  omni 
malitia  longe  esse  debent  ;  et  solam  veritatem  intueri,  quam  colit  ius  gentium, 
ot  post  quam  vadit,  non  autem  post  subtilitatem  bona  fides." 


138  ALBERICUS   GENTILIS 

own  sake,  but  with  a  view  to  attain  peace — which  may  be  defined 
as  "concordia  ordinata  'V  and  peace  will  be  more  likely  to  be 
durable  if  the  conqueror  acts  in  harmony  with  the  law  of  nature, 
and  observes  the  ius  gentium,  rather  than  merely  relying  on  oaths 
and  undertakings  exacted  from  the  conquered.2  To  inflict  mon- 
strous or  cruel  punishments,  even  under  great  provocation,  is 
barbarism.  Jurists  have  differed  considerably  as  to  the  guiding 
principles  to  be  observed;  but  Gentilis  unhesitatingly  affirms 
that  aequitas  is  to  be  preferred  to  ius  strictum,  and  honestas  to 
utilitas.3 

The  vanquished  party  may  be  deprived  of  all  weapons  of  war,4 
as  well  as  of  their  standards,  insignia,  etc.6  Their  fortifications 
and,  if  necessity  demand,  their  towns  taken  by  storm  may  be 
destroyed,6  and  harbours  "  filled  up. "  7  Their  temples  and  sacred 
objects  must  be  spared,  even  though  their  religion  is  deemed 
false.8  Works  of  art,  libraries,  manuscripts  are  inviolable.9  If 
the  various  proceedings  from  the  commencement  to  the  termina- 
tion of  hostilities  have  been  in  conformity  with  law  and  justice, 
then  the  victor  may  enter  into  occupation  of  his  opponent's 
territory.10  But  such  occupation  is  in  general  to  be  effected  only 
to  the  extent  of  the  territory  occupied  by  the  forces,  as  the  right 
is  "  particular  "  and  not  "  universal "  (which  Hotman  also 
holds) ;  it  is  a  case  of  "  adquisitio  universalis  "  only  when  a  State 
is  entirely  absorbed  by  another,  and  its  territory  passes  along 
with  its  rights  and  burdens.11  The  test  of  occupation  is  effective 
possession,  complete  control.12  If  not  otherwise  laid  down  by  a 
treaty  of  peace,  the  lands,  places,  buildings,  etc.,  as  well  as  ships, 
arms,  and  other  booty  are  in  the  power  of  the  occupier,  and  do 

1  De  iure  belli,  III.  1.  2  nL  13. 

3  IIL  12  ;  pp.  335-337  ;  p.  338  :  "  Integra  iustitia  est  quae  honestatem  rebus 
omnibus  anteponit  "  (according  to  the  opinion  of  Aristotle). 
«  III.  11;  p.  334.  5  m.  6;  p.  296. 

II.  7  ;  pp.  301,  302.  7  III.  7. 

8  III.  6  ;  p.  298  :  "  Neque  enim  licet  victorious,  perdere  victis  iura  Dei  aut 
naturae.     Etiam  et  quum  est  ea  rcligio  victi  falsa,  ut  sic  putet  oxymore, 
p.ircere  victo  decet." 

9  In  this  respect,  as  in  so  many  other  questions,  Gentilis  is  in  advance  of 
•n  timT '     Thu8'  in  1623'  when  Heidelberg  was  taken,  its  famous  library  was 

pillaged,  and  valuable  manuscripts  were  carried  off  to  the  Vatican.     Later 
I-  became  the  practice  to  stipulate  that  if  a  town  capitulated,  its  charters, 
public  documents,  etc.,  were  to  be  spared  by  the  conqueror— as  was  the  case 
in  Jf>78  when  Louis  XIV.  took  Ghent.  ">  De  iure  belli,  III.  4  ;  p.  292. 

II.  5  ;  p.  296  :  "  Et  civitas  quae  de  principe  in  principem  transient,  ccn- 
sctur  cum  omnibus  suis  qualitatibus  transiisse." 

.II.  17  ;  p.  370  :  "Is  dicitur  occupare,  qui  sic  incipit  occupare  ut  possit 
inservivre  et  possidere  ;  qui  autem  nequit  tenere,  nisi  capiat  aliquem  locum 
prmcipalcm,  is  occupasse  non  dicitur." 


ALBERICUS   GENTILIS  139 

not  revert  to  the  original  owners  if  the  enemy  is  not  expelled 
from  the  country.1 

As  to  the  person  of  the  vanquished,  Gentilis  emphasizes  that 
it  is  unlawful  to  slay  the  prisoners  or  the  heads  of  the  army  or  of 
the  defeated  State,  in  the  absence  of  urgent  reasons,2  or  retain 
them  in  captivity  after  peace  is  concluded.  Certain  rigours  might 
perhaps  be  excused  in  the  heat  of  a  battle,  but  not  so  when  the 
war  is  over.3  Further,  prisoners  of  war  may  not  be  reduced  to 
slavery,  at  least  as  between  Christians.4 

Other  rights  of  the  conqueror  are — to  change  the  form  of  the 
government  of  the  conquered  country,  if  demanded  by  reasons  of 
general  security,5  to  impose  his  religion  (but  only  in  the  absence 
of  any  other)6  and  the  language  of  his  country.7  Finally,  he  may 
justly  exact  a  war  indemnity,8  impose  a  tribute  and  other 
pecuniary  obligations,  and  demand  such  cessions  of  territory  as 
he  deems  "pro  arbitrio  boni  viri  "  indispensable  to  the  security 
of  his  State.9 

5.  Maritime  War. — Apart  from  the  rights  and  duties  of  bel- 
ligerents in  general  warfare,  a  few  questions  are  raised  by  Gentilis 
in  regard  to  naval  war.  The  granting  of  letters  of  marque — the 
recognized  and  usual  practice  of  the  age — is  emphatically  con- 
demned by  him  as  amounting  to  a  deliberate  sanction  of  robbery 
of  unarmed  and  harmless  merchants  and  others:  "Dico  esse 
odiosissimum  hoc  ius  litterarum  markae  quod  merito  divinissimus 
noster  rex  abominatur  ;  per  quod  geretur  latrocinium  verius  quam 
bellum  contra  inermes  et  innoxios  mercatores  et  alios  ab  aciebus 
longe  positos."10  Jurists  like  Covarruvias  and  Ayala11  had  ad- 
mitted the  legitimacy  of  reprisals  ;  and  even  Grotius  held  that 
the  goods  of  subjects  may  be  seized  in  respect  of  any  debt  or 
unfulfilled  obligation  of  their  sovereign  or  State.12 

1  De  iure  belli,  III.  17  ;  pp.  364,  367. 

2  III.  8  ;  p.  313.     Gentilis  refers  to  the  famous  case  of  Conradin,  who  was 
defeated  in  1268  by  Charles  of  Anjou,  and,  with  Pope  Clement's  consent,  was 
executed.     Gentilis  says  it  was  wrong  to  treat  Conradin  like  a  criminal  when 
he  was  taken  prisoner,  but  his  death  was  demanded  by  supreme  necessity. 
This  precedent  was  cited  by  Elizabeth  when  Mary's  complicity  in  Babington's 
plot  was  detected  in  1586. 

3  III.  8  ;  p.  311  :  "  Sed  in  bello  licuit  eos  occidere  inter  iram  vindictam  et 
arma,  non  in  pace." 

4  in.  9.  5  in.  10. 

8  HI.  11.  7  III.  11  ;  p.  331. 

s  III.  3.  9  III.  4. 

10  His  opinion  given  in  a  consultation,  and  to  be  found  in  Lansdmme  Manu- 
scripts, vol.  cxxxix. 

11  De  iure  et  officiis  bellicis  et  de  disciplina  militari  (1582),  I.  4.  3. 

12  De  iure  belli  et  pads.  III.  2.  2. 


140  ALBERICUS   GENTILIS 

As  to  maritime  capture,  various  doctrines  were  advanced  by 
writers  and  different  practices  adopted  by  States.  Some  held 
that  the  property  in  a  prize  vested  in  the  captor  the  moment 
it  was  taken  ;  others  insisted  that  in  order  that  the  property 
might  pass,  the  prize  must  have  remained  in  his  hands  for 
twenty-four  hours  ;*  others,  again,  amongst  whom  was  Gentilis, 
argued  that  acquisition  of  property  can  follow  only  after 
"deductio  intra  praesidia."2  The  rule  of  twenty-four  hours 
prevailed.3 

6.  Neutrality.4 — In  his  treatment  of  the  rights  and  duties  of 
neutrals  Gentilis  lays  down,  as  the  indispensable  criterion,  the 
territorial  principle.  A  bolligerent  has  not,  as  was  often  claimed, 
an  unrestricted  and  absolute  right  to  pass  over  a  neutral's  terri- 
tory. Innocent  passage,  however,  is  lawful ;  and  it  is  the  better 
practice  to  obtain  permission  from  the  State  or  sovereign  in 
question,  who  is  entitled  to  prohibit  within  his  dominions  any 
military  operations  whatever.5  Foreign  merchants  remaining 
temporarily  within  the  territory  of  a  belligerent  State  cannot  be 
treated  as  enemies  by  the  other  adversary,  if  they  take  no  part 
in  the  war  and  faithfully  observe  the  obligations  imposed  on 
neutrals.  Hence  they  are  free  from  all  acts  of  war,  including 
reprisals.6  But  if  such  merchants  or  other  aliens  have  estab- 
lished a  permanent  residence  there,  and  have  taken  over  their 
fortunes,  or  the  greater  part  thereof,  with  the  intention  of  settling, 
then  they  may  be  justly  identified  with  the  enemy  as  occupying 
the  position  of  subjects  of  their  new  country,  even  though  they 
had  not  acquired  the  full  rights  of  citizenship.7  The  test,  then, 
is  not  origin  or  naturalization — f  or  one  may  be  a  citizen  of  various 
places — but  domicile  ;8  and  this  depends  not  only  on  the  factum, 
but  also,  and  more  particularly,  on  the  animus  manendi9 — though 

1  Cf.  Grotius,  III.  6.  3.  n.  2. 

!  Advocatio  Hispanica,  I.  2  ;  p.  4  :  "  .  .  .  quod  res  hosti  capta  non  prius  ei 
quaereretur,  quam  et  intra  eiusdem  praesidia  perducta  esset,  quamvis  ea  diu 
possessa  csset,  per  duos  amplius  menses  in  mari  habita."  The  Siete  Partidas 
had  admitted  this  principle,  as  well  as  that  of  pernoctatio. 

3  Cf.  the  article  on  Zouche,  and  that  on  Bynkershoek. 

4  See  the  article  on  Bynkershoek. 

5  De  iure  belli,  I.  19  ;  p.  83.— Bonet,  L'arbre  des  batailles,  had  written  to  the 
same  effect  ;  but  there  were  then  no  fixed  rules  on  the  subject. 

6  II.  22  ;  p.  252  :  "  Mercatoribus  neque  nocendum  ost ;  qui  apud  hostes 
deprehcnduntur,  etenim  nee  hostes  isti  sunt ;  ut  nee  alii  peregrini.  .  .  . 
IVregrinos  neque  represaliae  afflictant." 

Ibid.,  p.  253. 

H  Ibid.,  p.  258 :  "  Subditi  dicuntur  non  respectu  originis,  vel  allectionis, 
sed  domicilii. 
"  Ibid.,  p.  255. 


ALBEBlCtTS  GENTILIS  141 

in  a  doubtful  case  domicile  may  be  presumed  from  ten  years' 
residence.  Moreover,  it  is  possible  to  have  several  domiciles.1 
From  these  considerations  it  follows  that  though  the  goods  of 
domiciled  persons  may  be  taken,  those  of  aliens  proper  must  be 
respected  (as  was  the  case  in  the  recent  war  between  England 
and  Spain),  unless  they  actively  assist  the  enemy. 

In  pursuance  of  the  principle  of  territoriality,  goods  or  prisoners 
taken  within  neutral  territory  do  not  pass  to  the  captor,  but 
must  be  delivered  up  on  the  demand  of  the  sovereign  of  that 
territory.2  The  same  rule  applies  even  if  flight  began  wheie 
capture  was  lawful :  for  change  of  territory  implies  another 
sovereignty  and  another  jurisdiction.3  Hence  in  the  war  be- 
tween France  and  Spain,  Spanish  fugitives  pursued  to  England 
by  the  French  were  held  to  be  protected  ;  and  similarly  in  1588 
when  the  Spaniards  fled  before  the  Engl^h  fleet  to  the  French 
coast.4 

All  neutrals  who  supply  munitions  of  war  and  provisions  to 
the  enemy,  and  instigate  or  encourage  him  in  any  way,  are 
deemed  to  have  taken  up  his  cause  and  to  be  therefore  invested 
with  hostile  character.  In  general  terms  it  may  be  stated  that 
he  is  an  enemy  who  does  what  pleases  the  enemy.  There  are  no 
positive  rules  of  ius  gentium  expressly  forbidding  the  commercial 
relationship  of  neutral  States  with  belligerents  ;  but  a  general 
proclamation5  or  a  special  demand  for  the  cessation  thereof  may 
be  made  by  either  adversary,  in  accordance  with  the  principles 
of  aequitas  and  natura.  Freedom  of  trade  and  the  rights  of 
merchants  are  undoubtedly  to  be  respected  ;  but  where  there  is 
a  conflict  between  the  interests  of  neutral  traders  and  the  supreme 
interests  of  a  belligerent  State,  the  latter  must  predominate.6 
Thus,  recalls  Gentilis,  Elizabeth  in  1589  rightly  claimed  that  the 
English  fleet  lawfully  despoiled  the  ships  of  the  Hanseatic  States 
for  sending  victuals,  naval  stores,  and  vessels  to  Spain.7  (On 

1  De  iure  belli,  II.  22 ;  p.  258. 

2  Adyocatio  Hispanica,  I.  5. 

3  Ibid.,  I.  5  ;  p.  16  :  "  Alienum  territorium  securitatem  praostat.    Et  mutato 
territorio  mutatur  potestas." 

4  Cf.  ibid.,  I.  8,  where  he  approves  of  the  wide  English  claim  to  maritime 
j  urisdiction. 

5  It  had  become  customary  as  early  as  the  thirteenth  century  to  issue 
proclamations  against  the  supply  of  munitions  and  provisions  to  the  enemy. 

6  De  iure  belli,  I.  21  ;  p.  97  :   "  Ius  commerciorum  aequuiu  cst  ;  at  hoc 
aequius  tuendae  salutis.     Est  illud  gentium  ius  ;  hoc  naturae  est.     Est  illud 
privatorum  ;  est  hoc  regnorum.    Ceoat  igitur  regno  inercatura,  homo  naturae, 
pecunia  vitae." 

7  Cf.  State  Papers,  Domestic,  Elizabeth,  ccxxii.  86,  89  ;  ccxxiii.  64  ;  ccxxv.  43. 


142  ALBEEICUS   GENTILIS 

this  occasion,  and  again  in  1597  at  the  request  of  Danish  ambas- 
sadors, the  English  government  drew  up  a  list  of  contraband 
goods  i1  and  in  1604  prohibited  articles  were  enumerated  in  the 
treaty  between  James  I.  and  Pliilip  III.  of  Spain,  and,  again, 
later  in  the  treaty  between  Sweden  and  the  United  Provinces.) 
Accordingly,  the  action  of  the  English  and  others  was  illegiti- 
mate, says  Gentilis,  when  they  supplied  munitions  of  war  ("com- 
moda  bello  ")  to  the  Turks,  who  were  at  war  with  the  Emperor. 
For  like  reasons  Charles  of  Burgundy  adopted  severe  measures 
against  foreign  traders  for  attempting  to  carry  provisions  to  his 
besieged  enemy.  The  guiding  rule  in  all  these  questions  may  be 
expressed  in  the  form  of  the  universal  imperative  :  "  Quod  tibi 
fieri  non  vis,  alteri  ne  feceris." 

Conclusion. — The  work  of  Gantilis  is  of  enduring  value  in  the 
history  of  the  law  of  nations.  He  did  more  than  any  other  writer 
to  free  international  law  from  the  besetting  theological  importa- 
tions and  the  incubus  of  scholastic  casuistry.  In  his  clear  recog- 
nition of  and  constant  insistence  on  the  predominant  positive 
aspects  of  the  subject,  he  foreshadowed  the  modern  prevailing 
view,  which  emphasizes  that  the  regulation  of  interstatal  rela- 
tionships is  based  on  law  and  not  merely  on  courtesy.  He  fre- 
quently appeals  to  divine  law  ;  he  is  always  ready  to  invoke  the 
authority  of  "  natural  reason,"  of  the  law  of  nature,  but  in  doing 
so  his  aim  is  to  apply  additional  sanctions  to  matters  which  are 
universally  affirmed  by  the  intuitive  consciousness  of  mankind. 
Metaphysical  abstractions  and  dialectic  subtleties  he  avoided  as 
being  a  menace  to  the  stability  of  the  very  foundations  of  the 
subject.  His  aim  is  a  thoroughly  practical  one  ;  he  considers 
with  the  mind  of  an  impartial  judge — a  mind  swayed  by  common 
sense  rather  than  by  ancient  authority — the  great  controversies 
of  the  time ;  and,  in  default  of  prior  agreement  or  consistent 
practice,  he  suggests  brief  definite  solutions  in  accordance  with 
the  behests  of  justice  and  humanity.  In  comparison  with  the 
comprehensive  work  of  Grotius,  the  work  of  Gentilis  may  seem 

1  It  may  bo  interesting  to  refer  to  Burleigh's  proclamation,  where  justifica- 
tion is  sought  on  the  grounds  of  civil  law,  the  law  of  nations,  natural  and 
divine  law  :  "  Her  Majesty  thynketh  and  knoweth  it  by  the  rules  of  the  law 
as  well  of  nature  as  of  men,  and  specially  by  the  law  civil,  that  whenever  any 
doth  directly  help  her  enemy  with  succours  of  eny  victell,  armor,  or  any  kynd 
of  munition  to  enhable  his  shippes  to  maintain  themselves,  she  may  lawfully 
interrupt  the  same  ;  and  this  agrecth  with  the  law  of  God,  the  law  of  nature, 
the  law  of  nations,  and  hath  been  in  all  tynies  practised  and  in  all  countries 
betwyxt  prynce  and  prynce,  and  country  and  country"  (Lansdowne  Manu- 
script*, civ.  30,  f.  70). 


ALBERlCtJS   GEKTILIS  143 

more  or  less  fragmentary  ;  but  it  is  important  to  remember  that 
the  work  of  the  former  was  a  later  publication  and  had  the  great 
advantage  of  being  modelled  on  that  of  the  latter.  No  doubt 
Grotius  is  superior  in  philosophic  grasp  ;  by  virtue  of  this  capacity 
he  elaborated  a  magnificent  system,  parts  of  which,  however, 
were  in  some  respects  retrograde,  in  others  alien  to  the  require- 
ments and  circumstances  of  the  age.  Hence  at  times  his  work 
presents  the  appearance  of  an  abstract  a  priori  treatise.  Gentilis, 
on  the  contrary,  always  considered  actual  conditions  and  possi- 
bilities, and  never  forgot  that  a  body  of  rules  governing  the  rela- 
tionships between  men  or  between  States  is  necessarily  of  an 
organic  nature  ;  hence  he  avoids  all  arbitrary  dogmatic  methods. 
He  clearly  marked  out  the  respective  spheres  of  the  international 
jurist  and  the  theologian  ;  he  carefully  differentiated  between  the 
work  of  the  international  lawyer  and  that  of  the  civilian.  He  is 
not  given  to  fallacious  presumptions  of  analogy  between  the  civil 
law  and  the  law  of  nations — presumptions  which  govern  the 
fundamental  classification  of  the  work  of  Grotius. 

When  we  carefully  weigh  all  these  considerations,  and  bear  in 
mind  the  differences  of  the  epochs  of  these  two  jurists,  the  greater 
difficulties  attending  the  pioneer  work  of  the  earlier  writer,  the 
remarkable  systematic  powers  and  enormous  European  influence 
of  the  later,  we  can  readily  conclude  that  Gentilis  and  Grotius 
are  the  two  greatest  contributors  to  international  law  ;  but,  not- 
withstanding the  glorification  of  the  one  by  the  Italian  school 
and  the  apotheosis  of  the  other  by  the  Dutch,  we  cannot  finally 
decide  which  of  them  really  occupies  the  foremost  place. 


FRANCIS  BACON 

THE  world  of  thought  is  apt  to  forget  that  Francis  Bacon,  the 
Master  of  Laws,  was  a  lawyer.  There  were  many  tent-makers 
before  the  days  of  Saul  of  Tarsus  and  after,  and  lawyers  were  not 
wanting  in  England  before  the  days  of  Lord  Verulam  of  York 
House,  nor  have  been  since.  But  Paul  we  remember  as  an  Apostle 
to  the  Gentiles,  and  Bacon  as  an  Apostle  to  the  Schoolmen.  Their 
trades  concern  us  not.  Indeed,  the  fact  that  Bacon  traded  in 
Jaw  is  one  of  the  tragedies  of  history.  Yet  to  forget  that  he  was 
a  lawyer  is  to  forget  that  he  was  a  jurist — a  very  different  matter  ; 
and  is  to  overlook  the  fact  that  the  laws  which  control  the  rela- 
tionships of  men  are  not  less  fundamental  than  the  laws  that 
express  the  interaction  of  particles  or  the  flux  of  energy.  To 
Bacon,  as  to  another  apostle,  nothing  was  unclean  or  common, 
except  perhaps  municipal  law,  and  all  that  appertained  either  to 
things  or  men  were  the  subject  of  legitimate  curiosity  and  ordered 
speculation.  But  the  law  of  his  nation  claimed  him  as  her  own 
by  hereditary  right,  and  trained  him  to  expound  not  only  the 
laws  of  men,  but  the  laws  of  Nature. 

Sir  Nicholas  Bacon. — Francis  Bacon  belonged  to  a  distin- 
guished legal  family  closely  associated  with  Gray's  Inn.  His 
example  and  that  of  his  famous  father,  Sir  Nicholas  Bacon,  no 
doubt  in  part  accounts  for  the  not  unremarkable  fact  that  in  the 
sixteenth  and  subsequent  centuries  there  were  in  ah1  forty  mem- 
bers of  the  inn  bearing  the  family  name,  of  whom  eight  had  the 
pramomen  of  Francis.  Sir  Nicholas  Bacon  was  the  first  pro- 
fessional lawyer  who  ruled  the  Court  of  Chancery.  He  was 
perhaps  Queen  Elizabeth's  first  legal  appointment.  In  1558  she 
made  him  Lord  Keeper  of  the  Great  Seal  of  England,  an  office 
that  he  held  until  1578.  During  Ins  time  it  was  declared  by 
Royal  Warrant  and  Statute  that  this  office  was  indistinguishable 
hi  operation  from  that  of  Lord  Chancellor.  Nicholas  Bacon  was 

144 


FRANCIS   BACON 


FRANCIS  BACON  145 

a  great  Elizabethan,  and  his  greater  son  reaped  the  sterling 
benefit  of  his  legal  prestige.  He  was  a  man  of  honest,  humorous, 
and  humble  heart,  and  he  abhorred  the  dishonesties  of  his  age 
and  his  profession.  He  spoke  plainly  to  the  Queen  on  the 
scandalous  matter  of  the  monopoly  licences.  "  Will  you  have 
me  speak  truth,  Madam  ?  Licentid  omnes  deteriores  sumus. 
We  are  all  the  worse  for  licence."  Despite  the  greatness  of  his 
position,  he  kept,  unlike  his  less  wise  son,  no  state.  "  My  Lord, 
what  a  little  house  have  you  gotten  !"  said  the  Queen  to  him  at 
Gorhambury.  "  Madam,"  he  replied,  "  my  house  is  well,  but  it 
is  you  that  have  made  me  too  great  for  my  house."  A  blunt, 
stern  judge,  he  had  little  sympathy  with  the  delays  and  garrulity 
of  his  profession.  '*  There  is  a  great  difference  betwixt  you  and 
me,"  he  once  said  to  a  verbose  pleader  :  "  a  pain  to  me  to  speak, 
and  a  pain  to  you  to  hold  your  peace." 

Nicholas  Bacon  had  been  Lord  Keeper  three  years  when  Francis 
was  born  in  the  legal  purple  on  January  22,  1561.  He  was 
destined,  as  the  Queen  prophesied,  to  achieve  the  unique  dis- 
tinction of  succeeding  to  the  great  office  that  his  father  held  at 
his  birth.  At  the  early  age  of  twelve  years  he  was  entered  at 
Trinity  College,  Cambridge,  but  he  came  down  in  March,  1575-6, 
having  but  just  completed  his  fourteenth  year.  He  joined  Gray's 
Inn  on  June  27,  1576,  and  on  November  21  of  the  same  year  he 
was  given,  with  his  four  brothers,  out  of  compliment  to  his 
father's  office,  a  position  among  the  Grand  Company  of  the 
Ancients.  He  was  shortly  afterwards  sent  to  Paris  to  learn 
diplomacy  in  its  subtlest  school,  and  he  remained  in  France  for 
three  years.  During  this  period  his  father  retired,  and  shortly 
afterwards,  in  February,  1578-9,  died  suddenly.  Francis  re- 
turned at  once  to  England,  and  resumed  his  legal  studies,  taking 
up  his  residence  in  chambers  at  Gray's  Inn  that  had  been  granted 
hi  1579  to  him  and  his  brother  Antony  jointly  for  a  term  of  years 
which  was  renewed  in  1588.  It  is  evident  that  the  Lord  Keeper 
had  made  arrangements  for  his  son's  return,  and  had  probably 
designed  in  his  retirement  to  watch  over  the  student's  progress 
in  laws  and  manners.  Bacon's  greatest  loss  in  life  was  the  death 
of  his  wise  father  at  this  critical  period.  The  lessons  of  the  Con- 
tinental school  of  diplomacy,  with  its  fluent  sophistries,  needed 
to  be  modified  by  the  slow  wisdom  of  the  man  to  whom  it  was 

"  a  pain  to  speak." 

11 


146  FRANCIS  BACON 

Gray's  Inn  :   Bacon's  Readings. — Bacon  never  gave  up  the 
chambers  in  Gray's  Inn.    At  a  pension  of  November  8,  1622, 
after  the  Lord  Chancellor's  fall,  they  were  re-granted  to  him  for 
a  term  of  forty  years.    He  had  then  retired  to  this  "cell." 
"  Myself  for  quiet  and  the  better  to  hold  out,  am  retired  to  Gray's 
Inn."     In  that  faithful  stronghold  disgrace  could  not  touch  him, 
and  he  could  look  freely  forth  upon  the  walks  that  he  had  made 
and  write  about  the  gardens  that  he  loved.    These  chambers  that 
he  occupied  for  five  and  forty  years  were  by  his  will  devoted  to  a 
pathetic  use.    He  directed  them  to  be  sold,  and  the  proceeds,  to 
the  extent  of  £300,  to  be  applied  "  for  some  little  present  relief  "  of 
fifteen  Cambridge  and  ten  Oxenf ord  scholars .     His  own  bounteous 
nature  looked  back  with  pain  on  the  narrow  means  that  warped 
his  own  professional  life.    He  took  up  residence  in  Gray's  Inn 
in  1580,  under  a  "special  admittance,"  that  excused  him  from 
keeping  commons.    Late  hours,  as  his  mother  plaintively  pointed 
out,  had  rendered  his  digestion  incapable  of  student's  fare.     On 
June  27,  1582,  he  was  called  to  the  Bar,  and  two  years  later  he 
entered  the  Parliament  that  met  on  November  23, 1584,  as  member 
for  Melcombe  Regis.    He  at  once  plunged  into  public  affairs,  and 
his  letter  of  advice  to  the  Queen  of  the  same  year  on  the  treat- 
ment of  Romanists  and  ultra-Protestants  savoured  of  wisdom  as 
unerring  as  it  was  precocious.     In  1586,  though  he  had  not  yet 
read,  he  was  made  an  honorary  member  of  the  Reader's  Table  at 
Gray's  Inn,  and  in  the  following  year1  he  was  elected  as  one  of 
the  Assistant  Readers  to  the  Reader  Anthony  St.  Leger.     In 
these  two  events  there  is  evidence  of  the  mark  that  he  had 
already  made  as  a  studious  lawyer.     His  first  Reading  dealt 
with  the  subject  of  Advowsons,  the  text  being  the  fifth  chapter 
of  the  second  Statute  of  Westminster.2    The  Reading  is  extant 
in  manuscript,  but  has  not,  so  far  as  I  am  aware,  yet  been 
published. 
The  Stowe  Collection  was  unfortunately  closed  to  Mr.  Spedding 

\1587,  according  to  Mr.  Hoath ;  but  1588,  according  to  the  Gray's  Inn 
Pension  Book. 

2  13  Edw.  I.e.  5  (1285)  (seo  Co.  Lift,  lib,  1196,  3446).  This  section  was 
enacted  to  provide  a  remedy  for  usurpations  of  the  advowsons  of  churches. 
J5y  Chapter  1.  of  the  Constitutions  of  Clarendon  (1164)  all  questions  relating 
to  advowsons  had  boon  removed  into  the  King's  Court ;  but  nevertheless  the 
writs  available  wore  of  little  use  to  rovorsionors.  It  was  found  that  heirs 
under  ago,  rovorsioners,  married  women,  and  religious  persons  during  the 
vacancies  of  their  holdings  frequently  suffered  the  loss  of  their  advowsons 
rough  fraudulent  presentations  to  benefices  by  life  tenants  and  other 
jKirsons.  There  wore  throe  original  writs— one  writ  of  Right  (de  recto  advo- 


FRANCIS  BACON  147 

and  Mr.  Heath,  with  the  result  that  it  was  not  possible  to  obtain  a 
transcript  of  the  unique  manuscript  of  the  Beading  for  the  pur- 
poses of  Mr.  Spedding's  final  edition  of  Bacon's  works.  This  was 
a  serious  loss,  for  the  Reading  is  the  earliest  extant  of  Bacon's 
legal  writings,  with  the  possible  exception  of  The  Discourse  upon 
the  Commission  of  Bridewell,  which  was  written  in  1587,  and  to 
which  I  shall  have  occasion  to  refer  later  as  giving  a  clear  view 
of  his  early  constitutional  ideas.  It  is  plain  that  by  this  date 
Bacon  had  become  a  deeply  read  lawyer.  Indeed,  before  this  date, 
in  1586,  his  merit  had  been  recognized,  for  in  that  year  he  was 
made  a  Bencher  of  his  Inn,  and  thus,  in  pursuance  of  a  resolution 
of  the  Privy  Council  of  February  8,  1584,  became  qualified  to  sign 
pleadings  and  to  plead  at  Westminster.  In  the  normal  course 
he  could  not  have  done  so  until  five  years  from  his  call  to  the  Bar. 
It  would  appear,  then,  that  Bacon  had  begun  seriously  to  practise 
in  1586.  In  the  same  year  he  was  elected  member  for  Taunton. 
In  1589  he  sat  for  Liverpool,  and  was  made  Dean  of  Gray's  Inn. 
A  year  later  he  was  created  Queen's  Counsel  Extraordinary.  In 
the  Parliament  of  1593  he  sat  for  Middlesex,  and  in  the  following 
year  he  was  appointed  as  acting  Treasurer  of  his  Inn.  All  the 
evidence  seems  to  point  towards  an  active  professional  and 
political  life.  It  is  said,  however,  that  it  was  not  until  1594  that 
he  first  argued  in  Court.  All  the  evidence  is  against  this  sugges- 
tion, for  not  only  had  he  been  a  Bencher  at  this  date  for  eight 
years,  and  a  Queen's  Counsel  for  four,  but  the  class  of  cases  he 
appeared  in  were  of  the  first  magnitude.  It  is  probable,  how- 
ever, that  it  was  on  January  25,  1594,  that  he  made  his  first 
striking  success  in  Court — a  success  sufficient  to  call  forth  the 
approval  of  Burghley.  He  increased  his  reputation  as  an  advo- 
cate, we  are  told,  by  further  arguments  on  February  5  and  6, 
1594.  These  successes  were  followed  in  the  Easter  Term  by  the 
great  argument — still  elaborately  extant — in  Chudleigh's  Case,  a 
cause  in  which  he  appeared  with  Coke.  Bacon  said  of  himself, 

cationis),  and  two  of  Possession  (darrien  presentment  and  quare  impedit) — 
but  as  they  provided  no  sufficient  remedy  the  statute  gave  the  rcversionors 
"  such  action  by  writ  of  Advowson  Possessory  as  the  last  ancestor  of  such 
an  heir  should  have  had  at  tho  last  avoidance  happening  in  his  time,  being 
of  full  age  before  his  death,  or  before  the  demise  was  made  for  term  of  life  or 
in  fee-tail."  Bacon's  view  on  this  intricate  subject  must  be  valuable.  Tho 
opinion  expressed  by  Sir  Edward  Coke,  that  an  infant  could  present,  whatever 
his  age  might  be — a  view  also  taken  by  Lord  Chancellor  King  (sue  3  Inst., 
166 ;  Co.  Litt.,  89a,  note  1) — could  have  found  little  favour  in  Bacon's  eyes, 
save  in  so  far  as  it  negatives  the  idea  of  lapse. 


148  FRANCIS  BACON 

"  In  weighty  causes  I  always  used  extraordinary  diligence  ";  and 
this  is  certainly  confirmed  by  the  arguments  extant,  all  of  which 
show  profound  learning  in  case  law  and  immense  elaboration. 
It  is  absurd  to  suppose  that  the  author  of  the  argument  hi 
Chudleigfrs  Case  was  unfamiliar  with  Court  work.  He,  indeed,  at 
this  date  considered  himself  entitled  to  a  Crown  officership,  and 
when,  despite  the  influence  of  Essex,  he  failed  to  obtain  recogni- 
tion, he  felt  that  he  had  received  a  professional  rebuff.  Writing 
to  Essex  in  1595,  he  expressed  a  wish  to  retire  from  the  legal 
profession.  The  want  of  money  was,  we  may  believe,  at  this 
time  a  serious  matter.  Naturally  lavish  in  his  expenditure,  and 
with  but  small  private  means,  some  certainty  of  income  had 
become  a  necessity.  An  application  for  the  Mastership  of  the 
Wards  failed.  In  May,  1596,  he  attempted,  without  success,  to 
secure  the  Mastership  of  the  Rolls.  A  corrupt  competitor  was 
appointed.  Bacon  himself  was  gradually  drawn  into  the  net- 
work of  corruption  that  surrounded  the  whole  judicial  system. 
He  secured,  instead  of  the  Rolls,  the  reversion  of  the  Clerkship 
of  the  Star  Chamber,  and  in  1597  he  actually  offered  this  post  to 
the  Lord  Keeper,  Sir  Thomas  Egerton,  for  his  son,  in  considera- 
tion of  the  grant  of  the  again  vacant  Mastership  of  the  Rolls. 
This  singularly  unhappy  proposal  was  repeated  on  November  12, 
1 597,  at  the  very  time  that  Egerton  was  acting  as  a  member  of  a 
commission  appointed  to  inquire  into  the  corrupt  practices  of  the 
Master  who  had  secured  the  office  in  the  place  of  Bacon  in  May, 
1596. 

The  Judicial  Sale  of  Offices  in  the  Sixteenth  Century. — This 
affair  is  important,  though  it  is  not  mentioned  by  Lord  Macaulay. 
It  throws  a  vivid  light  upon  the  judiciary  system  of  the  period, 
and  if  we  are  to  be  just,  as  Mr.  Macaulay  expressed  a  desire  to  be 
in  his  unjust  and  melodramatic  essay,  it  is  necessary  to  realize 
what  that  system  was.  The  Chancery  Court  in  the  late  sixteenth 
century  had  become  independent  of  the  Privy  Council,  and  the 
Lord  Chancellor  was  its  judge.  There  had  been  from  early  times 
twelve  Masters  in  Chancery  who  at  this  date  issued  writs  of  grace, 
and  assisted  the  chancellor  in  the  hearing  of  causes  and  inter- 
locutory motions.  This  assistance  was  necessary  in  the  case  of 
unprofessional  chancellors  such  as  Sir  Christopher  Hatton,  who 
was  appointed  in  1589.  Much  work  then,  as  now,  was  delegated 
to  the  Masters, — the  taking  of  accounts  and  more  serious  matters. 
Bacon  in  his  Chancery  Orders  greatly  limited  the  system  of 


FRANCIS  BACON  149 

delegation.  It  was  absurd  for  a  demurrer  to  be  argued  before  a 
clerk.  These  Masters  were  paid,  not  by  salary,  but  by  fees,  and 
were  appointed  at  a  price  by  the  Lord  Chancellor.  Nominally 
the  Crown  appointed  the  chief  of  the  Masters,  who  was  known 
as  the  Master  of  the  Rolls  ;  but  in  practice  this  office  was  largely 
in  the  gift  of  the  Chancellor.  The  fact  that  in  the  reigns  of 
Elizabeth  and  James  I.  these  offices  were  deliberately  priced  does 
not  perhaps  necessarily  prove  that  the  officials  were  corrupt,  for 
the  sale  appears  to  have  been  quite  open.  But  it  is  beyond  doubt 
that  the  Masters  were  subjected  to  influences  that  involved  cor- 
ruption. They  had  to  repay  themselves  out  of  fees  for  the  price 
paid,  and  to  increase  legal  business  was  to  them  a  necessity  of 
life.  The  Master  of  the  Rolls  had  under  him  the  notorious  body 
known  as  the  Six  Clerks.  These  clerks  were  nominally  the 
solicitors  of  the  parties  in  every  cause,  and  they  in  fact  kept  the 
records  of  the  causes,  and  they  compelled  suitors  to  have  useless 
copies  of  the  proceedings  at  huge  fees.  It  was  to  their  interest 
to  encourage  litigation  and  the  multiplication  of  formal  docu- 
ments. It  was  necessary  for  the  fees  to  be  large,  since  each  of 
the  Six  Clerks  had  eight  sworn  clerks  (which  formed  the  body, 
known  later,  when  the  number  in  1668  was  increased  to  ten,  as 
the  Sixty  Clerks),  who  were  "  paid  a  fixed  percentage  of  the  fees 
paid  by  suitors  to  the  Six  Clerks."1  In  Bacon's  time,  and  before 
he  attained  judicial  office,  the  Court  of  Chancery  was  not  only 
necessarily  corrupt,  but  also  almost  irreformable.  "The  fees 
were  excessive,  and  the  officials  who  received  them  were  the  most 
determined  opponents  to  effective  reform.  .  .  .  These  officials 
did  their  work  by  deputies,  whom  they  generally  underpaid. 
Their  deputies  naturally  tried  to  recoup  themselves  by  question- 
able practices.  Sometimes  they  concealed  business  from  their 
superiors  and  kept  the  fees.  .  .  .  Thus,  while  the  actual  work 
was  badly  done  by  underpaid  deputies,  the  suitor  paid  enormous 
fees  to  sinecure  officials.  These  officials  naturally  regarded  their 
offices  merely  as  property.  They  were  sold  by  the  Chancellor  or 
given  to  his  relations.  .  .  .  From  the  Lord  Chancellor,  who  sold 
the  higher  offices,  to  the  under-clerk,  who  did  the  work  of  the 
higher  official,  all  Jiad  an  interest  in  maintaining  the  system. 
The  Court,  it  was  said  with  some  truth,  was  '  a  mere  monopolie 
to  cozen  the  subjects  of  their  monies.' '  There  was  nothing 
corrupt,  as  things  were  then  understood,  in  Bacon's  scandalous 

1  W.  S.  Holdsworth,  History  of  English  Law,  p.  217. 


150  FRANCIS  BACON 

offer  to  Sir  Thomas  Egerton.  The  Lord  Keeper  had  something 
to  sell  and  Bacon  had  something  to  buy  with.  The  legal  atmo- 
sphere where  such  a  proposal  could  be  made  is  the  thing  that 
makes  one  wonder.  Bacon's  conviction  in  1622  did  nothing  to 
clear  the  atmosphere,  which  grew  worse  and  worse.  The  price 
of  the  Mastership  went  up.  In  1688  it  was  worth  a  thousand 
pounds  ;  and  when  Lord  Macclesfield  was  impeached  in  1725  it 
was  worth  six  times  that  sum.  This  scandal  was  ended  with  the 
impeachment ;  but  the  Chancery  did  not  improve,  and  yet  in 
1816  Lord  Eldon  saw  little  that  needed  change.  The  best  of  men 
in  the  atmosphere  of  the  Court  of  Chancery,  up  till  comparatively 
recent  times,  had  their  whole  moral  nature  perverted.  It  is  still 
possible  for  a  solicitor-trustee  to  involve  an  estate  in  an  action 
against  the  wish  of  his  clients,  and  for  the  sole  purpose  of  in- 
curring costs  ;  but  such  cases  are  rare.  Yet  it  is  not  so  long  ago 
since  the  initiation  of  such  actions  by  solicitors  on  the  advice  of 
counsel  was  regarded  as  legitimate  professional  enterprise  and 
part  of  the  daily  task  of  otherwise  quite  blameless  men.  If  Bacon 
was  regarded  as  an  honest  irfan  when  he  made  his  unsavoury  offer 
in  1597,  it  is  difficult  to  see  why  he  was  other  than  honest  in 
1622.  The  taking  of  large  "expedition  fees"  and  gifts  from 
suitors  after  the  conclusion  of  suits  was  not  one  iota  more  corrupt 
than  the  sale  of  judicial  offices  to  notoriously  unfit  persons.  It 
would  be  absurd  to  charge  Lord  Eldon  with  corruption,  but  his 
official  life  was  lived  in  the  midst  of  abuses  which  he  never  lifted 
a  hand  to  reform.  There  was  hardly  a  Chancellor  from  Bacon 
to  Eldon  who  was  not,  in  a  court  of  conscience,  as  guilty  as  Bacon. 
Indeed,  in  the  mid-eighteenth  century  "  expedition  fees  "  were 
so  well  recognized  that  in  1740  a  committee  of  the  House  of 
Commons  recommended  their  abolition.  "  Hardwicke  signed  the 
report.  But  he  introduced  no  measure  of  reform.  During  the 
latter  part  of  the  eighteenth  century  all  projects  of  reform  seem 
to  have  been  abandoned.  No  general  orders  were  made  by  any 
Chancellor  from  Hardwicke  (1737-57)  to  Loughborough  (1793- 
1801)."  As  we  shall  see,  Bacon  did  attempt  to  cleanse  these 
Augean  stables.  That  he  was  abominably  soiled  in  the  attempt, 
no  one,  and  himself  the  least,  denies.  But  he  was,  in  the  eyes 
of  his  own  age,  a  political  and  not  a  criminal  offender.  He 
received  his  deserts,  but  not  at  the  hands  of  justice.  In  the 
pathetic  "Epistle  Dedicatory"  to  "an  advertisement  touching 
an  holy  war,"  written  after  his  fall  in  the  year  1622,  he  compares 


FRANCIS  BACON  151 

himself  to  Demosthenes,  Cicero,  and  Seneca  :  "  all  three  ruined, 
not  by  war,  or  by  any  other  disaster,  but  by  justice  and  sentence, 
as  delinquents  and  criminals  ;  all  three  famous  writers,  insomuch 
as  the  remembrance  of  their  calamity  is  now,  as  to  posterity,  but 
as  a  little  picture  of  night-work,  remaining  amongst  the  fair  and 
excellent  tables  of  their  acts  and  works."  This — and  indeed  the 
whole  epistle,  with  its  reference  to  "  mine  own  country  which  I 
have  ever  loved,"  fails  to  strike  the  note  of  conscious  guilt. 
Bacon  knew  perfectly  well  that  Chancery  was  pitch,  and  that  it 
was  impossible  to  touch  it  without  defilement.  Again  and  again 
he  would  gladly  have  given  up  the  law.  The  opportunity  never 
offered.  A  man  with  a  profession  and  nothing  else  must  live 
by  it.  He  had  to  reconcile  himself  to  live  by  the  law  in  the  way 
that  the  men  of  his  times  and  for  more  than  two  centuries  after 
did  live  by  it — a  way  certainly  not  honest,  but  a  way  that 
seemed  honester  to  them  than  to  us  who  have  not  their  tempta- 
tions. 

The  Maxims  and  the  Digest. — It  has  been  necessary  to  refer 
somewhat  at  large  to  the  question  of  legal  corruption  at  this  stage, 
for  it  enables  us  to  realize  a  little  more  clearly  the  manner  of  man 
that  Bacon  was  and  the  difficulties  of  his  path.    We  can  now 
rapidly  survey  the  remainder  of  his  life  as  a  lawyer.    Imme- 
diately before  his  second  application  to  Lord  Ellesmere,  Bacon 
had  taken  his  seat  as  member  for  Southampton  in  the  Parliament 
that  met  on  October  24,  1597.    He  did  not  obtain  the  Rolls,  and 
pursued  his  practice  at  the  Bar.     But  legal  projects  more  im- 
portant even  than  practice  were  at  this  very  period  in  his  mind. 
The  valuable  work  on  the  Maxims  of  the  Law  was  composed  in 
1596-7.     It  must  be  read  in  connection  with  the  principles  of  a 
Digest  of  English  Law  laid  down  in  the  82nd  and  subsequent 
aphorisms  in  the  8th  Book  De  Augmentis  (published  in  1623),  and 
in  the  Proposal  for  Amending  the  Laws  of  England,  and  with  other 
attempts  to  deal  with  the  subject,  such  as  the  treatise  De  Diversis 
Regulis  Juris,  which  he  made  from  time  to  time  henceforth  almost 
to  the  close  of  his  life.     On  May  2nd,  1614,  Bacon  introduced  a 
bill  "giving  authority  to  certain  commissioners  to  review  the 
state  of  the  penal  laws,  to  the  end  that  such  as  are  obsolete  and 
snaring  may  be  repealed  ;  and  such  as  are  fit  to  continue,  and 
concern  one  matter,  may  be  reduced  respectively  into  one  clear 
form  of  law."     This  was  followed,  about  June,   1614,  by  a 
memorial  to  the  King,  asking  him  to  appoint  a  Commission  on 


152  FRANCIS  BACON 

the  Penal  Laws  and  to  codify  the  Reports  that  embodied  the 
Common  Law,  and  to  restore  the  system  of  Official  Reporters  in 
order  to  create  an  authoritative  body  of  Case  Law.  The  attempts 
were  never  perfected.  In  the  Epistle  Dedicatory  of  1 622  he  refers 
to  the  De  Augmentis  Scientiarum :  "  I  have  also  entered  into  a 
work  touching  Laws,  propounding  a  character  of  Justice,  in  a 
middle  term,  between  the  speculative  and  reverend  discourses  of 
philosophers,  and  the  writings  of  lawyers  which  are  tied  and 
obnoxious  to  their  particular  laws.  And  although  it  be  true 
that  I  had  a  purpose  to  make  a  particular  digest  or  recompile- 
ment  of  the  laws  of  mine  own  nation  ;  yet  because  it  is  a  work 
of  assistance,  and  that  I  cannot  master  by  mine  own  forces  and 
pen,  I  have  laid  it  aside."  The  Maxims  of  the  Law  is  all  that  we 
have  in  a  finished  form  of  this  designed  Digest.  We  may  well 
believe  that  he  had  no  heart  for  it  after  the  disastrous  events  of 
March,  1522.  He  preferred  to  revise  his  published  writings  and 
put  into  form  some  of  his  scientific  work.  The  law  was  a  broken 
bank.  He  preferred  to  invest  his  "  poor  talent,  or  half-talent  " 
in  "banks  or  mounts  of  perpetuity  which  will  not  break." 
The  Installation  was  not  burdened  with  recollections  of  the 
Chancery. 

As  the  century  drew  towards  its  close,  Bacon's  reputation  as  a 
practical  lawyer  and  as  an  authority  on  great  legal  questions  drew 
him  into  the  important  causes  of  the  day  (such  as  Slade's  Case  in 
1596  and  The  Lord  Cromwell's  Case  in  1601,  reported  by  Coke), 
and  placed  him  in  the  front  rank  of  the  profession.  It  is  diffi- 
cult to  compare  him  with  his  only  serious  rival,  Sir  Edward  Coke  ; 
but  there  can  be  little  doubt  that  Bacon  welcomed  comparison. 
The  Statute  of  Uses  provided  the  most  acute  legal  controversy  of 
the  age.  Coke,  as  Reader  at  the  Inner  Temple  in  1592,  had 
dealt  most  successfully  with  this  subject,  and  he  appeared  with 
Bacon  in  the  great  Chudleigh  Case  in  1594,  when  the  functions 
of  uses  were  analyzed  with  all  the  most  refined  reasoning  that 
decadent  Aristotelianism  could  provide.  Bacon  did  not  hesitate 
as  to  his  theme  when,  on  November  9,  1599,  he  was  offered  the 
Double  Readership  at  Gray's  Inn.  He  accepted  the  offer  on 
November  14,  and  in  the  Lent  Vacation  of  1600  he  gave  his  famous 
Heading  on  the  Statute  of  Uses,  which  extended  over  six  or  possibly 
nine  days.  He  was  certainly  not  afraid  of  the  precedent  set  by 
Coke.  He  deliberately  challenged  comparison.  In  this  elaborate 
study,  as  in  the  Maxims  of  the  Law,  he  wished  to  appear  as  a 


FRANCIS   BACON  153 

lawyer  who  not  only  rivalled  but  outshone  the  only  man,  with 
the  possible  exception  of  Croke,  who  stood  in  his  rank. 

On  the  Coronation  Day  of  James  I.,  Bacon  was  knighted,  and 
shortly  afterwards  he  married  a  daughter  of  Alderman  Barnham, 
who  presumably  brought  money  as  well  as  beauty  to  the  now 
famous  lawyer.  In  1607  he  obtained  the  long-desired  Solicitor- 
Generalship. 

The  Case  of  the  Post-Nati  and  Others. — There  are  extant 
certain  arguments  of  law  delivered  by  Bacon  whilst  Solicitor  or 
Attorney,  some  corrected  by  his  hand.  There  were  the  case  of 
the  Post-Nati  of  Scotland,1  argued  in  1607  in  the  Exchequer 
Chamber  before  the  Lord  Chancellor  and  all  the  judges  ;  the  case 
of  the  jurisdiction  of  the  Marches,  argued  in  1604  by  Bacon  and 
Sir  John  Croke  on  behalf  of  the  Council  of  the  Marches  against 
Coke,  who  appeared  for  the  Kong's  Bench,  and  again  argued, 
this  time  before  Coke,  in  1608 ;  Lowe's  Case  of  Tenures  (argued 
before  1616,  in  the  King's  Bench,  see  9  Co.  23) ;  Lady  Stanhope's 
Case  of  Revocation  of  Uses  (argued  before  1616) ;  the  Case  of 
Impeachment  of  Waste  (Lewis  Bowie's  Case,  11  Co.  79),  decided 
in  1615  ;  and  the  Case  de  Rege  in  consulto  (Brownlow  v.  Michell), 
argued  in  1615-6.2  In  1608  Bacon  produced  the  legal  composi- 
tions which  were  published  in  1641,  under  the  title  of  Cases  of 
Treason.  These  writings  include  the  papers  known  as  the  Pre- 
paration of  the  Union  of  Laws  and  the  Answers  to  the  Questions 
of  Sir  A.  Hay.  In  1614  was  published  his  charge  as  Attorney- 
General  "touching  Duells,  upon  an  information  in  the  Star- 
chamber  against  Priest  and  Wright.  With  the  decree  of  the  Star 
Chamber  in  the  same  cause."3  In  1609  the  Solicitor-General  was 
elected  Treasurer  of  Gray's  Inn,  a  position  which  he  held  until 
he  became  Lord  Chancellor  in  1617.  As  Treasurer  he  laid  out 
the  walks  and  gardens  of  Gray's  Inn,  and  induced  the  Bench  to 

1  Bacon's  speeches  in  this  case,  and  his  speech  or  papers  on  The  Union 
of  the  Lawes  of  the  Kingdomes  of  England  and  Scotland,  were  "  published  by 
the  author's  copy  and  licensed  by  authority"  by  Richard  Badger  in  1641. 
The  Cases  of  Treason,  published  in  the  same  year,  also  contained  the  essay 
on  The  Union  of  Laws,  though  probably  a  variant  in  form.     The  interest 
taken  in  the  subject  at  this  date  was  natural. 

2  We  may  also  mention  the  interesting  argument  on  the  subject  of  Royal 
Forests  in  a  doer-stealing  case  before  the  Star  Chamber  on  October  23rd, 
1614.     The  official  charges  against  Oliver  St.  John,  Owen,  Sir  John  Went- 
worth,  and  the  Earl  and  Countess  of  Somerset  in  1615-6  hardly  come  within 
the  scope  of  this  paper. 

3  This  appears  to  bo  a  very  scarce  volume.     Mr.  Spodding  reprints  it. 
The  copies  were  "  printed  for  Robert  Wilson,  and  are  to  bo  sold  at  Graies 
Inn  Gato,  and  in  Paulea  Churchyard  at  the  signe  of  the  Bible,  1614." 


154  FRANCIS   BACON 

spend  much  money  on  this  laudable  object.  The  Pension  Book 
tells  us  of  the  planting  of  many  red  roses  and  of  much  sweet-briar, 
while  possibly  some  of  the  beeches  and  elms  that  he  planted 
(at  eight  pence  and  tenpence  each)  survive  even  to  this  day.  In 
1613  Bacon  became  at  last  Attorney-General,  and  on  March  11, 
1616-7,  he  received  the  Great  Seal  that  his  father  had  laid  down 
thirty-eight  years  before.  A  little  later  (1618)  he  became  Lord 
Chancellor,  with  the  title  of  Lord  Verulam,  to  which  was  subse- 
quently added,  in  1621,  the  peerage  of  St.  Albans. 

TothilPs  Reports. — The  only  law  reports  that  cover  this  period 
are  Tothill's.  There  are  sixty-nine  decisions  in  Chancery  reported 
in  Tothill  between  March  11,  1616-7,  and  May  3,  1621.  This 
would  seem  a  really  rich  source  from  which  to  derive  some  ade- 
quate knowledge  of  the  work  of  Bacon  as  a  judge.  In  fact, 
however,  Tothill  is  a  mine  of  disappointments.  There  are  few 
of  the  cases  that  are  at  all  intelligible  as  reported,  and  those  that 
are  intelligible  often  enough  suggest  erroneous  reporting.1 

1  It  will  be  convenient,  however,  to  give  a  list  of  these  cases.  The  page 
in  Tothill  is  given  after  the  regnal  year.  Curious  persons  may  think  it  worth 
while  to  search  the  Chancery  records  for  further  particulars  as  to  these  cases. 
The  list  is  as  follows  : 

Gardiani  de  Eltham  (15  Jac.  7),  Hunt  v.  Bancroft  (14  Jac.  &  15  Jac.  146), 
Mudget  v.  Dames  (15  Jac.  20),  Middleton's  Case  (15  Jac.  32),  B's  Case  (Hil. 

15  Jac.  47-8),  Stafford  v.  Pasch  (15  Jac.  49),  Watson  v.  Maihne  (Mich.  15  Jac. 
101 ).  Tinchifs  Case  (15  Jac.  110),  Dean  and  Chapter  of  Westminster  v.  Eldridge 
(15  Jac.  110),  Simeon  v.  Dean  of  Windsor  (Trin.  15  Jac.  123),  Bayliff  v.  Long- 
u-orth  (15  Jac.  140),  Holmes  v.  Conway  (15  Jac.  143),  Warcroft  v.  Lord  Cul- 
pepper  (Mich.  15  Jac.  159).  Pistte  v.  Bardie  (Mich.  15  Jac.  180).  Middleton  v. 
Lort  (Mich.  15  Jac.  180),  Wilson  v.  Dunstar  (Mich.  15  Jac.  181),  Garford  v. 
Humble  (Mich.  16  Jac.  26),  Moreton  v.  Briggs  (Hil.  16  Jac.  43),  Denis  v.  Carew 
(16  Jac.  63),   Wiat  v.  Wiat  (Mich.  16  Jac  93),  Goodfellow  v.  Morris  (Mich. 

16  Jac.  131),  Price  v.  Lloyd  (circa  16  Jac.  137),  Austen  v.  Cheney  (Trin.  16  Jac. 
138).  Lupton  v.  Harman  vel  Harmon  (Pascho  Trin.  and  Mich.  16  Jac.  139 
&  176),  Rowswdl  v.  English  (Trin.  16  Jac.  147),  Starkey  v.  Starkey  (Mich, 
or  Hil.  16  Jac.  149),  Harrington  v.  Horton  &  Cox  (circa  16  Jac.  156).     Dimmock 
v.  Williams  (Mich.  16  Jac.  159),  Garfield  [vel  Garford  .?]  v.  Humble  (16  Jac.  159), 
Todker  v.  Mayor  of  Exeter  (Mich.  16  Jac.  165),  Waller  v.  Waller  (16  Jac.  168), 
Freeman  v.  Hugget  (Hil.  16  Jac.  168),  Ancher  v.  Frith  (16  Jac.  176),  Frith  v. 
Trian  (16  Jac.  176),  Little  v.  Good  (Trin.  16  Jac.  181),  Arleston  v.  Kent  (Feb.  17 
Jac.  27),  Hansly  v.  Hansly  (Trin.  17  Jac.  93),  Anon  :  Ca*e  (17  Jac.  94), 
Cartwright  v.  Drope  (Mich.  17  Jac.  110),  Barkley  v.  Pierson  (Trin.  17  Jac.  113), 
Tiffin  v.  Tiffin  (Hill  17  Jac.  113),  Finch  v.  Hicks  (Hil.  or  Pasch.  17  Jac.  113), 
Shapcot  v.  Dowrish  (Trin.  17  Jac.  138),  Hooe  v.  Arnold  (circa  17  Jac.  146), 
Morgan  v.  Richardson  (Hil.  17  (?)  IS  Jac.  154),  Banister  v.  Brooke  (Mich. 

17  Jac.  158),  Lord  Pembroke  v.  Eyre  (17  Jac.  158),  Thornburgh  v.  Grobdam 
(circa  17  Jac.  161),  Huet  v.  Hurston  (17  Jac.  168),  Hoskets  v.  Hillier  (Pasche 
17  Jac.  169),  Roane  v.  Stepney  (17  or  18  Jac.  176),  Prentice  v.  Roupe  (17  Jac. 
176),  Eardley  v.  Eltonhead  (17  (?  15)  Jac.  177),  Overmann  v.  Wright  (Hil. 
17  Jac.  177)  Neivton  v.  Price  (Pasche  17  Jac.  180),  Bourne  v.  Ironmonger 
(Mich.  17  Jac.  181),  Peacock  v.  Reynell  (June  17  Jac.  186),  Hunt  v.  Youngman 
(17  Jac.  187).  Long  v.  Long  (Hil.  17  (?)  Jac.  190),  Posthumus  Bobbie  v.  Smith 
(18  Jac.  11),  Sacheverellv.  Sacheverell  (18  Jac.  38), Nelson  v.  Yelverton  (18  Jac. 


FRANCIS   BACON  155 

The  only  further  legal  works  with  which  Bacon  was  connected 
that  need  be  referred  to  here1  are  the  Ordinances  in  Chancery. 
It  is  certain  that  a  considerable  number,  and  it  is  probable  that 
a  good  many,  of  these  Ordinances  were  his  own,  were  his  attempt 
to  cleanse  the  Chancery. 

Bacon  as  a  Jurist :  an  Appreciation. — We  have  now  named  in 
chronological  order  the  various  legal  works  that  Bacon  left  to 
the  world,  and  have  indicated  so  far  as  was  necessary  the  main 
facts  of  his  life  as  a  lawyer.  The  general  impression  left  upon  the 
mind  by  a  perusal  of  the  disordered  fragments  and  arguments 
that  constitute  his  contribution  to  the  history  of  law  and  by  an 
observation  of  his  legal  career  is  one  of  disappointment.  His 
massive  intellect  and  subtle  mind  appear  at  first  never  to  have 
been  persistently  applied  to,  though  they  often  approached  and 
dallied  with,  the  great  problems  of  jurisprudence .  One  is  tempted 
to  imagine  that  he  never  repaid  to  the  law  of  England  the  debt 
which  he  owed  to  it .  He  was  a  great  advocate  and  a  great  pleader, 
we  say,  "  great,  even  as  a  lawyer,"  to  use  Lord  Coleridge's  critical 
phrase,  but  there  is  no  evidence  to  show  that  he  was  a  great  judge, 
and  little  evidence  to  prove  that  he  was  a  great  jurist.  That  is 
the  way  in  which  a  perusal  of  the  professional  works  inevitably 
at  first  strikes  the  reader.  He  lived  by  the  law,  but  the  law 
did  not  live  by  him.  A  second  and  third  reading  leave  a  different 
impresion.  We  realize  that  it  is  greatly  due  to  the  fragmentary 
character  of  the  legal  remains  that  this  somewhat  sordid  im- 
pression arises.  Bacon  did  in  fact  live  by  the  law,  and  was  on 
the  whole  careless  as  to  the  literary  merit  of  his  legal  writings. 
When  he  thought  that  such  writings  were  likely  to  advance  him, 
he  was  at  times,  as  in  the  case  of  the  Four  Arguments  of  Law, 
more  careful.  But  not  always.  We  have  but  a  disordered 
fragment  of  his  famous  Double  Reading  on  the  Statute  of  Uses. 
We  ought,  if  Bacon  is  a  great  jurist,  to  be  able  to  disregard  the 
disordered  condition  of  his  legal  writings,  and  to  find  therein  an 
essential  orderliness  and  dry  luminosity  of  thought  calculated  to 
give  life  to  the  law  he  lived  by.  The  more  closely  Bacon's  legal 
works  are  studied  the  more  certain  it  becomes  that  this  is  the 
case,  and  the  reader  is  more  and  more  tempted  to  regret  that  his 


39-40),  Grant  v.  Edes  (18  Jac.  42),  Harris  v.  Beadle  (Hil.  18  Jac.  73),  Dom 
Crispe  (Pasche  or  Trin.  18  Jac.  94),  Long  v.  Long  (18  Jac.  169),  Cottle  v. 
Brooke  (Pasche  18  Jac.  176),  Underhill  v.  Joyner  (18  Jac.  184-5). 

1  The  Use  of  the  Law  attributed  to  him  is  certainly  an  apocryphal  treatise. 


156  FRANCIS   BACON 

legal  conceptions  have  been  so  rarely  pursued  and  so  generally 
disregarded.  It  will  be  useful  briefly  to  consider  the  works  in 
their  chronological  order. 

The  Commission  of  Bridewell.— The  Brief  Discourse  upon  the 
Commission  of  Bridewell  was  written  in  1587,  when  Bacon  was 
twenty-six  years  of  age.     It  is  in  many  ways  a  remarkable  paper, 
showing  an  extraordinary  knowledge  of  Statute  and  Case  Law 
bearing  upon  constitutional  questions.     It  is  an  argument  against 
the  legality  of  a  charter  granted  to  the  city  of  London  by  the 
Crown,  empowering  the  Governor  of  Bridewell  to  arrest,  imprison, 
and  punish  evil  characters  in  the  city  at  his  discretion.     Bacon 
lays  down  the  proposition  that  "  a  King's  grant  either  repugnant 
to  law,  custom,  or  statute  is  not  good  nor  pleadable  in  the  law," 
and  establishes  it  with  abundant  reference  to  the  Statute  Book 
and  the  Year  Books.     He  then  goes  on  to  say,  "  Yet  do  not  we  see 
daily  in  experience  that  whatsoever  can  be  procured  under  the 
Great  Seal  of  England  is  taken  quasi  sanctum ;  and  although  it  be 
merely  against  the  laws,  customs,  and  statutes  of  this  realm, 
yet  it  is  defended  in  such  sort,  that  some  have  been  called  rebel- 
lious for  not  allowing  such  void  and  unlawful  grants."  Here,  in  no 
mincing  language,  was  laid  down  the  constitutional  position  that 
it  was  to  be  the  special  privilege  of  the  seventeenth  century  to 
redeem.     Bacon  from  first  to  last  had  no  doubt  of  the  limitations 
of  the  Crown,  though  when  he  held  the  Seal  he  dared  not  rebuke 
licence  in  high  places,  as  his  father  had  done.     The  weakness  of 
the  mother  who  excused  Francis  from  the  frugal  commons  of 
Gray's  Inn  played  its  fatal  part  in  his  character.     But  Bacon,  if 
we  may  believe  Tothill's  report  in  Sir  Thomas  Middletoris  Case,1 
was  no  favourer  of  corruption  on  the  part  of  Crown  officials.     In 
that  case  the  master  and  mariners  of  a  government  vessel  agreed 
that  a  rateable  proportion  should  be  deducted  from  their  wages 
for  the  relief  of  such  of  the  crew  as  should  be  maimed  at  sea.     Sir 
Thomas  Middleton,  the  Treasurer  for  the  Navy  in  1590,  at  the  end 
of  the  voyage  paid  the  wages,  but  detained  the  rateable  propor- 
tion that  had  been  agreed  to  be  deducted  for  the  relief  of  the 
maimed  seafaring  men.     The  detention  was  made  despite  the 
fact  that  there  were  no  members  of  the  crew  who  had  a  right  to 
claim  the  deduction.     Bacon  held  that  the  Treasurer  for  the 
Navy  must  account  to  the  crew  for  this  money.     He  refused,  in 
fact,  to  recognise  that  a  Government  department  was  above  the 

1  P.  32,  15  Jac. 


F&AHCIS  BACON  157 

law  or  could  override  either  a  contract  or  the  ordinary  principles 
of  equity.  The  case  is  both  interesting  and  important,  and 
apparently  shows  that  Bacon  was  entirely  proof  against  the  in- 
fluence that  would  naturally  at  that  date  have  been  brought  to 
bear  upon  him  in  such  a  case.  The  cause,  moreover,  proves  that 
throughout  his  career  he  refused  to  recognize  any  unconstitutional 
claims  of  the  Crown.  It  is  also  an  instance  of  the  delay  of  justice 
that  blotted  the  Chancery  of  England.  Bacon's  decision  was 
given  about  thirty  years  after  the  cause  of  action  arose. 

The  King's  Prerogative. — The  Cases  of  the  King's  Prerogative 
which  Bacon  adopted,  if  he  did  not  actually  compile,  in  1608, 
admirably  summarizes  the  prerogatival  power,  in  matters  relating 
to  Parliament,  to  the  persons  of  the  King's  subjects,  to  war  and 
peace,  money,  trade,  and  traffic.  There  is  no  word  in  this  terse 
code  that  clashes  with  Bacon's  views  expressed  in  the  matter  of 
the  Bridewell  Charter,  in  1587,  or  in  the  Seafarer's  Wages'  Case 
in  1618.  The  Preparation  for  the  Union  of  Laws,  which  was  for 
the  most  part  printed  in  Cases  of  Treason  in  1641,  and  also  in  a 
volume  of  speeches  published  in  the  same  year,  is  undoubtedly 
from  Bacon's  hand,  and  belongs,  with  its  remarkable  preface,  to 
the  year  1608.  No  word  in  this  criminal  code  or  its  preface 
modifies  the  constitutional  position  that  Bacon  from  the  first 
held.  In  the  preface  he  specially  points  out  that  the  King  has 
of  himself  no  power  of  codifying  existing  laws,  or  of  bringing 
the  laws  of  England  and  Scotland  into  conformity,  but  that 
he  can  deal  with  administrative  questions,  such  as  the  re- 
arrangement of  circuits  and  of  the  method  of  issuing  commissions 
of  peace. 

The  next  work  that  requires  some  notice  is  the  Maxims  of  the 
Law,  composed  when  Bacon  was  thirty-five  years  of  age.1  It 
was  dedicated  to  "  Her  Most  Sacred  Majesty  ";  to  the  Queen  who 
never  forgave  his  early  protest  in  Parliament  against  illegal  and 
unconstitutional  subsidies,  a  protest  the  spirit  of  which  (despite 
Macaulay's  view)  never  fails  in  all  Bacon's  constitutional  writings. 
The  dedication,  if  stripped  of  its  fine  flowers  of  bitterness — 
"  for  if  your  government  be  considered  in  all  the  parts  it  is  in- 
comparable " — is  an  unflinching  indictment  of  the  evils  of  a 
system  that  Bacon  himself  was  destined  to  administer,  and  a 
passionate  plea  for  reform.  He  says  : 

1  The  argument  in  Chudleigh's  Case  was  composed  two  years  earlier,  but 
that  should  be  read  with  the  Reading  of  1600. 


158  FRANCIS  BACON 

"Your  Majesty's  reign  having  been  blest  from  the  Highest 
with  inward  peace,  and  falling  into  an  age  wherein,  if  science  be 
increased,  conscience  is  rather  decayed  ;  and  if  men's  wits  be 
great,  their  wills  be  more  great ;  and  wherein  also  laws  are  multi- 
plied in  number,  and  slackened  in  vigour  and  execution  ;  it  was 
not  possible  but  that  not  only  suits  in  law  should  multiply  and 
increase,  whereof  always  a  great  part  are  unjust,  but  also  that  all 
the  indirect  and  sinister  courses  and  practices  to  abuse  law  and 
justice  should  have  been  much  attempted  and  put  in  use  :  which 
no  doubt  had  bred  greater  enormities,  had  they  not,  by  the  royal 
policy  of  your  Majesty,  by  the  censure  and  foresight  of  your 
Council  table  and  Star-Chamber,  and  by  the  gravity  and  integrity 
of  your  Benches,  been  repressed  and  refrained  :  for  it  may  be 
freely  observed,  that,  as  concerning  frauds  in  contracts,  bar- 
gains, and  assurances,  and  abuses  of  laws  by  delays,  covins, 
vexations,  and  corruptions  in  informers,  jurors,  ministers  of 
justice,  and  the  like,  there  have  been  sundry  excellent  statutes 
made  in  your  Majesty's  time,  more  in  number,  and  more 
politic  in  provision,  than  in  any  of  your  Majesty's  predecessors' 
times." 

The  Plea  for  Codification. — Codification  of  the  laws,  he  feels, 
is  the  only  remedy  for  the  many  evils,  and  draws  hope  from  the 
Queen's  speech  of  1593  of  "a  general  amendment  of  the  state 
of  your  laws,  and  to  reduce  them  to  more  brevity  and  certainty  ; 
that  the  great  hollowness  and  unsafety  in  assurances  of  lands 
and  goods  may  be  strengthened  ;  the  snaring  penalties  that  lie 
upon  many  subjects  removed  ;  the  execution  of  many  profitable 
laws  revived  ;  the  judge  better  directed  in  his  sentence  ;  the 
counsellor  better  warranted  in  his  counsel ;  the  student  eased  in 
his  reading  ;  the  contentious  suitor  that  seeketh  but  vexation 
disarmed  ;  and  the  honest  suitor  that  seeketh  but  to  obtain  his 
right  relieved." 

Perhaps  the  need  for  codification  and  the  results  springing  from 
it  have  never  been  put  so  forcibly  and  happily  before  or  since. 
Bacon,  indeed,  hoped  much  from  the  personal  influence  of  the 
Queen,  and  believed,  too,  in  the  strengthening  of  the  Crown  that 
would  result  from  a  strengthening  of  the  laws.  The  relationship 
of  the  Crown  and  the  laws,  not  in  their  creation,  but  in  their  opera- 
tion, was  a  note  that  he  never  tired  of  striking.  In  his  pamphlet1 

1  As  to  authorship  see  Acia  Candlaia;,  pp.  23G-8,  and  Lord  Bacon's 
Works,  xiii.,  pp.  100,  115. 


FRANCIS  BACON  159 

on  the  murder  of  Sir  John  Tyndale  by  Bertram  —  not 
printed  by  Spedding — he  says  :  "  The  law  is  a  dumb  king,  the 
King  a  speaking  law.  All  subordinate  judges  are  but  organ- 
pipes,  to  sound  forth  such  notes  of  concord  as  the  King  sets  to 
keep  his  kingdoms  in  tune  ;  so  that  if  any  one  jar,  no  subject  is 
to  take  upon  him  to  mend  or  correct,  but  to  tell  the  fault  to  him, 
who  is  the  chief  master  of  that  music,  and  to  let  his  ears 
distinguish  the  tunes."  Beside  this  statement  should  be 
placed  the  picture  of  a  perfect  judge  as  drawn  by  Bacon  in  his 
famous  essay  on  Judicature.  He  could  not  do  the  things  that 
he  would. 

The  Maxims  of  the  Law. — The  Maxims  of  the  Law  are  Bacon's 
contribution  to  the  perfect  organ  of  law  upon  which  he  wished 
the  King  to  play  and  produce  perfect  harmony.  The  Epistle 
Dedicatory  and  the  Preface  throw  no  mean  light  on  the  question 
of  codification.  He  recalled  Elizabeth's  mind  to  the  triumphs 
of  Augustus  Caesar : 

"Pace  data  terris,  animum  ad  civilia  vertit 
Jura  suum  ;  legesque  tulet  justissimus  auctor." 

He  reminded  her  of  Justinian,  whose  pride  it  was  "  to  revisit 
the  Roman  laws,  and  to  reduce  them  from  infinite  volumes  and 
much  repugnancy  into  one  competent  and  uniform  corps  of  law." 
He  pointed  out  that  the  time  of  peace  is  the  time  of  reform, 
since  peace  produces  "  abundance  of  wealth  and  fineness  of  cun- 
ning .  .  .  multitude  of  suits  and  controversies,  and  abuses  of 
laws  by  evasions  and  devices."  He  felt  called  to  aid  in  the  work 
of  reform,  for  "  I  hold  every  man  a  debtor  to  his  profession  ; 
from  the  which,  as  men  of  course  do  seek  to  receive  countenance 
and  profit,  so  ought  they  of  duty  to  endeavour  themselves,  by 
way  of  amends,  to  be  a  help  and  ornament  thereunto.  This  is 
performed  in  some  degree  by  the  honest  and  liberal  practice  of 
a  profession,  when  men  shall  carry  a  respect  not  to  descend  into 
any  course  that  is  corrupt  and  unworthy  thereof,  and  preserve 
themselves  free  from  the  abuses  wherewith  the  same  profession 
is  noted  to  be  infected ;  but  much  more  is  this  performed  if  a 
man  be  able  to  visit  and  strengthen  the  roots  and  foundations 
of  the  science  itself ;  thereby  not  only  gracing  it  in  reputation 
and  dignity,  but  also  amplifying  it  in  perfection  and  substance." 
It  is  a  pathetic  statement  of  an  ideal,  a  confession  of  a  high  faith, 
that  Bacon,  if  history  be  true,  deliberately  abandoned.  It  tempts 


160  FRANCIS  BACON 

the  reader  to  believe  that  there  is  some  mystery  yet  unsolved  be- 
hind the  corruption  of  Lord  St.  Albans.  In  face  of  the  evidence 
it  seems,  however,  impossible  to  suggest  that  that  corruption  was 
the  work  of  his  clerks  by  which  he  never  benefited,  but  for  which 
he  was  morally  and  legally  responsible. 

In  his  preface  he  goes  on  to  declare  that  from  the  first  his  object 
had  been  that  the  laws  should  be  the  better  by  his  industry,  and 
that  that  object  would  be  best  attained  "  by  collecting  the  rules 
and  grounds  dispersed  throughout  the  body  of  the  same  laws," 
and  so  abolish  the  great  evil  of  English  law — its  uncertainty — 
and  correct  its  "  unprofitable  subtlety."  He  felt  it  would  have 
been  possible  to  have  digested  "  these  rules  into  a  certain  method, 
or  order,  which,  I  know,  would  have  been  more  admired,  as  that 
which  would  have  made  every  particular  rule,  through  his  co- 
herence and  relation  into  other  rules,  seem  more  cunning  and  more 
deep."  This  suggestion  is  in  itself  one  that  is  of  immense  value. 
He  conceived  the  upbuilding  of  a  coherent  organic  code  of  law 
out  of  the  heterogeneous  materials  that  lay  to  hand  on  every 
side.  He  specifically  affirms  the  possibility  of  creating  such  a 
code,  and  the  conception  was  one  that  could  only  spring  from 
a  great  jurist.  He  apologizes  for  not  undertaking  the  work.  He 
desired  merely  to  produce  a  code  of  immediate  usefulness.  He 
aimed  at  "  a  work  without  any  glory  of  affected  novelty,  or  of 
method,  or  of  language,  or  of  quotations  and  authorities,  dedicated 
on  to  use,  and  submitted  only  to  the  censure  of  the  learned,  and 
chiefly  of  time."  Bacon  never  produced  the  work  that  he 
designed.  The  Maxims  of  the  Law  are,  so  to  speak,  a  sample 
of  the  work.  When  he  became  Attorney-General  he  was  again 
labouring  at  it,  and  he  actually  issued  his  Proposal  for  Amending 
the  Laics  of  England.  Later  still,  in  the  De  Augmentis  Scientiarum, 
he  is  still  thinking  the  work  out .  But  it  never  attained  form .  We 
have  fragments  and  suggestions  all  of  great  worth,  and  teeming 
with  the  wealth  of  ideas.  But  we  have  no  code  that  could  be 
submitted  to  "the  censure  of  tune."  He  realized  that  the 
actual  working  out  of  a  digest  of  the  laws  of  England  could  not 
be  undertaken  by  one  hand.  The  lapse  of  three  centuries  leaves 
his  conception  still  in  the  main  unrealized.  In  1605  it  could 
easily  have  been  realized,  but  in  1905  we  have  the  Justinianean 
task  many  times  magnified  before  us.  Bacon's  fragment,  the 
Maxims  of  the  Law,  does  not  call  for  analysis  here.  No  one  but 
a  profound  lawyer  could  have  produced  it,  and  it  may  be  read 


FRANCIS  BACON  161 

with  profit  by  the  practising  lawyer  at  the  present  hour.1  How- 
ever, this  is  not  the  place  in  which  to  deal  with  the  Maxims  in 
detail.  The  point  of  value  is  that  Bacon,  in  an  age  of  subtle 
prolixity,  advocated  the  codification  of  the  law,  and  demonstrated 
by  experiment  its  possibility. 

Chudleigh's  Case  :  The  Statute  of  Uses.  — •  Some  further 
reference  must  be  made  to  Chudleigh's  Case  of  1594  and  the  Read- 
ing on  the  Statute  of  Uses  of  1600.  Chudleigh's  Case  raised  the 
foEowing  point :  A  infeoffed  certain  persons  of  the  land  in  ques- 
tion to  the  use  of  A  and  the  heirs  of  his  body,  with  remainder  to 
the  use  of  the  feoffees  and  their  heirs  during  the  life  of  A's  eldest 
son  B,  with  remainder  in  tail  to  B's  male  issue,  with  remainder  to 
A's  other  sons  then  living  nominatim  in  succession,  with  remainder 
to  A's  right  heirs  in  fee.  A  died  in  the  lifetime  of  the  feoffees,  who 
infeoffed  B  in  fee  to  the  exclusion  of  the  subsequent  remainder- 
men. B  had  issue  two  sons,  S  and  John,  who  possessed  con- 
tingent uses  so  excluded.  B  infeoffed  a  stranger  C,  who  infeoffed 
another  stranger  D  ;  S  died  without  issue,  and  after  B's  death, 
his  younger  son  John  entered  and  granted  a  lease  to  Freine,  the 
plaintiff  in  the  action.  Dillon,  the  representative  of  D,  re- 
entered  on  Freine,  who  thereupon  brought  an  action  of  trespass. 
Bacon  and  Coke  were  instructed  to  argue  that  as  there  was  no 
estate  left  on  the  feoffees  at  the  time  when  John's  estate  would 
have  fallen  into  possession,  his  interest  had  gone.  The  action 
for  trespass  was  dismissed  by  the  majority  of  the  judges  in  the 
Exchequer  Chamber  on  the  ground  that  where  future  uses  are  not 
vested  they  can  only  be  executed  when  they  arise  if  the  feoffees 
possess  a  right  to  enter  in  pursuance  of  a  scintilla  juris  et  tituli 
or  vestige  of  estate  remaining  in  them.  Chudleigh's  feoffees  had 
parted  with  their  scintilla,  and  therefore  John  Chudleigh  had  no 
estate.  Bacon,  in  his  elaborate  and  weighty  argument,  urged  the 
doctrine  of  the  scintilla  juris,  as  in  duty  bound  ;  but  he  lost  no 
opportunity  to  scoff  at  the  argument  of  Coke,  the  prime  supporter 
of  the  doctrine.  On  the  subject  of  this  doctrine  he  says  :  "  And 

1  The  modern  lawyer  will,  however,  refuse  to  concede  some  of  the  proposi- 
tions. The  fifth  maxim,  Necessitas  inducit  privilegium  quoad  jura  private, 
carries  the  doctrine  of  necessity  beyond  our  present  limits.  "  First  of  conserva- 
tion of  life :  If  a  man  steal  viands  to  satisfy  his  present  hunger,  this  is  no 
felony  nor  larceny."  Staundford  is  quoted  in  support  of  this  proposition. 
Bacon,  under  the  same  heading,  deals  with  the  question  to  which  Sir  James 
Stephen  refers  of  two  men  clinging  to  a  plank  capable  of  supporting  only  one. 
Bacon  declares  that  it  is  lawful  for  one  to  thrust  the  other  away.  Stephen 
declares  the  act  not  punishable  (but  see  R.  v.  Dudley  and  Stephens,  14  Q.B.D. 
at  pp.  285-6). 

12 


162  FRANCIS   BACON 

for  that  which  has  been  objected,  that  the  use  is  in  the  keeping 
of  the  law,  and  that  nothing  is  in  the  feoffees  ;  it  is  true  that  the 
use  is  preserved  by  the  law,  but  not  executed  by  the  statute  before 
the  time.  And  therefore  it  appears,  by  evident  demonstration, 
that  an  interest  remains  in  the  feoffees.  A  fee  simple  absolute  is 
passed  to  the  feoffees  in  possession,  only  a  fee  simple  defeasible 
is  executed  by  the  statute,  as  is  proved  :  if  then  the  lesser  estate 
be  subtracted  and  deducted  out  of  the  greater,  it  is  of  necessity 
that  a  surplusage  remains.1  .  .  .  This  is  the  medium  between 
the  two  estates  ;  and  if  the  first  cestui  que  use  be  disseised  and 
continued  disseised,  and  the  limitation  comes  in  use,  the  first 
use  ceases,  and  the  second  cannot  rise  by  reason  of  the  removing 
of  the  possession  out  of  privity.  And  so  the  feoffees  come  to  have 
right,  and  can  enter  or  bring  their  writ  of  right ;  but  after  they 
have  re-entered  or  recovered,  the  use  now  takes  the  possession 
from  them.  But  in  our  case  the  feoffees  are  disabled  by  their 
own  feoffment."  The  doctrine  of  the  scintilla  juris  et  tituli  could 
hardly  be  put  higher.  Bacon  was  quite  capable  of  playing  the 
Neo- Aristotelians  with  their  own  weapons.  But  he  did  not  for 
a  moment  accept  his  own  argument.  He  was  personally  satisfied 
to  establish  what  Chudleigh's  Case  in  the  long  run  only  did 
establish,  the  common  law  control  over  statutory  uses  that  could 
take  effect  as  common  law  uses.  In  his  arguments  in  this  case 
and  Lady  Stanhope's  Case  on  the  revocation  of  uses,  it  is  clear 
that  he  did  not  recognize  the  existence  of  statutory  uses  rendered 
indefeasible  by  that  very  fact  of  their  independence  of  the 
common  law.  To  him  the  statute  of  Henry  VIII.  "  alters  not 
the  law  as  to  raising  of  uses,  but  only  to  draw  the  possession  after 
them.  Wherefore  if  a  contingent  use  could  not  rise  at  common 
law  if  the  possession  of  the  feoffees  was  estranged  without  regress, 
so  no  more  can  it  at  this  day  :  for  the  statute  leaves  all  questions 
of  rising  of  an  use  merely  to  the  common  law,  and  makes  no 
alteration."  The  statute  must  not  be  bent  to  meet  the  equity 
of  the  case.  In  ChudleigWs  Case  he  told  the  Court  bluntly  : 
"  For,  as  you,  my  lords  judges,  better  know,  so,  with  modesty, 
I  may  put  it  in  your  remembrance,  that  your  authority  over  the 

1  He  previously  quotes  Dyer  on  the  point,  "  Adhuc  remanet  quaedam 
scintilla  juris  et  tituli,  quasi  medium  quid  inter  utrosque  status.  Which 
words  are  very  significant.  For  the  most  proper  sense  is  that,  if  two  uses 
bo  limited,  one  to  determine  and  the  other  to  commence,  between  the  cesser 
of  the  one  and  the  rising  of  the  other,  the  feoffees  (who  are  vessels,  as  Mr 
Atkinson  terms  them)  receive  the  land  from  the  one  cestui  que  use  and  deliver 
it  to  the  other,  and  have  a  right,  in  the  sight  of  the  law,  between  the  two." 


FRANCIS    BACON  163 

laws  and  statutes  of  this  realm  is  not  such  as  the  Papists  affirm 
the  Church  to  have  over  the  Scriptures,  to  make  them  a  ship- 
man's  hose  or  nose  of  wax  ;  but  such  as  we  say  the  Church  has 
over  them,  sett,  to  expound  them  faithfully  and  apply  them 
properly."  l  His  argument  may  well  be  memorable  for  such  a 
pronouncement  as  this,  which  illustrates  his  entire  position  as  a 
constitutional  jurist.  But  the  Reading  seems  to  show  his  recog- 
nition of  the  fact  that  the  statute  did  create  a  new  type  of  use 
that  could  take  effect  without  the  aid  of  the  common  law,  though 
he  does  not  analyze  the  distinction  between  the  two  types  of 
limitations.  His  main  point  is  that  a  use  is  a  species  of  property 
moulded  by  its  creator,  and  not  a  mere  metaphysical  imitation 
of  a  real  possession.  "A  conveyance  in  use  is  nothing  but  a 
publication  of  the  trust."  He  will  have  no  metaphysical 
imagining  in  an  operative  law.  Realities  are  the  only  things  that 
matter.  "  The  conceit  of  scintilla  juris  "  must  disappear  with  the 
Lincoln's  Inn  subtlety  of  "  imitation  of  possession."  "  The 
statute  .  .  .  succeeds  in  office  to  the  feoffees,"  and  it  is  the 
illogical  will  of  Parliament,  and  not  a  logical  spark  of  title  dwell- 
ing in  gremio  legis  or  in  the  heavens,  that  keeps  intact  each 
tenuous  remainder.  Coke  and  Bacon  both  argued  in  Chud- 
Uigtis  Case,  and  both  read  on  the  Statute  of  Uses  ;  but  it  was 
Bacon  only  who  realized  that  it  was  necessary  finally  to  abolish 
the  relationship  of  scholasticism  and  law.  Bacon  declines  in  his 
Reading  "to  stir  conceits  and  subtle  doubts,  or  to  contrive  a 
multitude  of  tedious  and  intricate  cases,  whereof  all,  saving  one, 
are  buried,  and  the  greater  part  of  that  one  case  which  is  taken 
is  commonly  nothing  to  the  matter  in  hand.  But  my  labour 
shall  be  in  the  ancient  course,  to  open  the  law  upon  doubts,  and 
not  to  open  doubts  upon  the  law."  It  was  his  function,  in  fact, 
finally  to  extinguish  the  scintilla  juris  in  the  grave  that  he  digged 
for  the  Schoolmen.2 

Some  space  must  be  devoted — much  ought  to  be  devoted — to 
other  great  arguments.  The  case  of  the  Post-Nati  of  Scotland 
(Calvin's  Case)  was,  as  Bacon  told  the  Court,  "  of  exceeding  great 
consequence."  The  question  was  whether  natives  of  England 
or  Scotland  were  or  were  not  naturalized  in  both  kingdoms  after 

1  See  also  the  Essay  on  Judicature. 

2  In  fact,  the  scintilla  juris  flickered  up  and  down  Lincoln's  Inn  until  the 
passing  of  Lord  St.  Leonard's  Act,  1860  (23  &  24  Viet,,  c.  38,  s.  7),  which 
specifically  declared  that  no  "  seisin  to  uses_  or  scintilla  juris  "  should  "  bo 
deemed  necessary  for  the  support  of  or  to  give  effect  to  future  or  contingent 
or  executory  uses." 


164  FRANCIS    BACON 

the  accession  of  James.  The  Commissioners  of  Union  in  1605 
had  advised  in  favour  of  the  double  naturalization  ;  and  in  view 
of  the  attitude  of  the  Commons,  the  matter  was  fully  discussed  by 
a  hybrid  committee  of  the  two  Houses  on  February  25,  1606-7. 
The  next  day  ten  judges  against  one  advised  the  Lords  in  favour 
of  the  Post-Nati,  thus  confirming  the  view  indicated  before  the 
committee  by  Lord  Ellesmere.  The  Commons,  however,  refused 
to  pass  a  declaratory  Act,  and  consequently  the  Crown  arranged 
the  hearing  of  a  specific  case  dealing  with  the  question  before 
the  Easter  term  of  the  following  year.  Bacon  argued  for  the 
Post-Nati,  and  his  view  was  adopted  by  the  Lord  Chancellor 
and  thirteen  judges.  Foster  and  Walmsley  were  the  sole  dis- 
sentients. Bacon's  argument  is  very  elaborate,  and  is  professedly 
based  upon  "the  foundations  and  fountains  of  reason."  Was 
naturalization  accessory  to  sovereignty,  which  in  this  case  was 
joint,  or  to  the  legislature,  which  was  several,  was  "  the  depth  of 
this  question."  He  appealed  to  a  Schoolman's  edition  of 
Aristotle  to  prove  that  a  monarchy  is  the  natural  state  of  govern- 
ment— "  from  the  Monarch  of  heaven  and  earth  to  the  king,  if 
you  will,  in  an  hive  of  bees  ":  "  other  states  are  the  creatures  of 
law."  This  appeal  to  the  law  of  nature,  which  had  long  uncon- 
sciously been  moulding  the  juristic  systems  of  Europe,  in  such 
a  case  is  as  remarkable  as  it  was  ingenious.  But  it  required  im- 
mediate modification.  Bracton  is  quoted  :  Lex  facit  quod  ipse 
est  Rex.  Moreover,  "  his  acts  and  grants  are  limited  by  law,  and 
we  argue  them  every  day.  But  I  demand,  Do  these  offices  or 
operations  of  law  evacuate  or  frustrate  the  original  submission, 
which  was  natural  ?  Or  shall  it  be  said  that  all  allegiance  is  by 
law  ?"  In  a  fine  passage  he  declares  that  this  is  not  so.  "  No 
man  will  affirm  that  the  obedience  of  the  child  is  by  law,  though 
laws  in  some  points  do  make  it  more  positive  :  and  even  so  it  is 
of  allegiance  of  subjects  to  hereditary  monarchs,  which  is  cor- 
roborated and  confirmed  by  law,  but  is  the  work  of  the  law  of 
nature."  Then  in  a  fine  legal  frenzy  he  confirmed  his  argument 
by  adducing  the  parliamentary  title,  Our  natural  sovereign  and 
liege  lord,  flung  in  the  face  of  the  judges  the  saying  of  one  of 
them  that  he  would  never  allow  that  Elizabeth  "should  be  a 
statute  Queen,  but  a  common-law  Queen,"  and  concluded  with 
a  further  reference  to  "  Our  natural  liege  sovereign ;  as  Acts  of 
Parliament  speak :  for  as  the  common  law  is  more  worthy  than  the 
statute  law ;  so  the  law  of  nature  is  more  worthy  than  them  both." 


FKAWCIS    BACON  165 

Some  such  speech  as  this  it  must  have  been  to  which  Ben  Jonson 
listened  :  "  The  fear  of  every  man  that  heard  him  was  lest  he 
should  make  an  end." 

The  Law  of  Nature. — The  value  that  Bacon  attached  to  the 
law  of  nature,  to  "  Natural  equity,"  is  significant  of  his  position 
as  a  jurist  and  of  the  general  tendency  of  legal  thought.  "  Our 
law  is  grounded  upon  the  law  of  nature,"  he  declares  in  a  later  part 
of  the  argument.  "  For,  my  lords,  by  the  law  of  nature  all  men 
in  the  world  are  naturalized  one  towards  another.  They  were 
all  made  of  one  lump  of  earth,  one  breath  of  God.  ...  It  was 
civil  and  national  laws  that  brought  in  these  words,  and  differ- 
ences, of  civis  and  extents,  alien  and  native.  And  therefore 
because  they  tend  to  abridge  the  law  of  nature,  the  law  favoureth 
not  them,  but  takes  them  strictly.  .  .  .  All  national  laws  what- 
soever are  to  be  taken  strictly  and  hardly  in  any  point  wherein 
they  abridge  and  derogate  from  the  law  of  nature.  .  .  .  Further- 
more, as  the  law  of  England  must  favour  naturalization  as  a 
branch  of  the  law  of  nature,  so  it  appears  manifestly,  that  it  doth 
favour  it  accordingly.  ...  In  such  sort  doth  the  law  of  Eng- 
land open  her  lap  to  receive  in  people  to  be  naturalized  ;  which 
indeed  showeth  the  wisdom  and  excellent  composition  of  our 
law,  and  that  it  is  the  law  of  a  warlike  and  a  magnanimous  nation 
fit  for  empire." 

In  this  argument  Bacon  achieved  a  remarkable  feat — the 
reconciliation  to  his  own  satisfaction  of  the  allegiance  of  the  sub- 
ject to  the  King  with  the  allegiance  of  the  King  to  the  law.  The 
right  divine  of  kings  to  govern  right  was  really  the  conclusion 
achieved.  So  long  as  the  King  governed  according  to  law,  no 
one  would  question  the  divinity  of  his  origin  or  the  Trinitarian 
metaphysic  of  Plowden  (borrowed,  one  would  think,  at  the 
same  time  as  the  Schoolman's  Aristotle,  with  a  gleam  of  humour 
by  the  author  of  the  Novum  Organum),  with  respect  to  the  dual 
personality  of  the  King.  This  part  of  the  argument  was  of  great 
importance  in  the  history  of  the  development  of  English  law. 
for  it  shows  how  the  doctrine  of  natural  law  had  developed  sinco 
the  date  when  the  Doctor  and  Student  had  been  written  a  century 
before.  But  the  sting  of  the  great  argument  was  in  its  tail. 
The  union  of  the  two  kingdoms  was  a  necessity  :  si  inseparables 
insuperabiles.  The  law  of  nature  admits  no  competitors  when  it 
becomes  the  law  of  necessity.  Francis  Bacon  was  born  a  genera- 
tion too  soon.  His  force  as  a  constitutional  thinker,  combined 


166  FRANCIS    BACON 

with  his  great  powers  in  debate,  would  have  gone  far  to  solve 
problems  already  in  his  time  ripening  in  the  sunlight  of  public 
opinion.  Common  law  monarchy  might  still  be  with  us  had 
Bacon  and  not  Strafford  advised  Charles  Stuart. 

Bacon's  influence  as  a  constitutional  lawyer  did  not  abate. 
His  famous  argument  on  the  writ  de  non  precedendo  rege  incon- 
sulto  (Browrdow  v.  Michell),  delivered  immediately  before  he 
received  the  Great  Seal,  was  a  forensic  triumph.  He  spoke  for 
two  hours  and  a  half,  and  "  lost  not  one  auditor  that  was  present 
at  the  beginning."  Queen  Elizabeth  had  attempted  to  create  a 
new  office  in  connection  with  the  grant  of  patents.  The  judges 
refused  to  admit  the  nominee  on  the  ground  that  it  infringed 
Magna  Charta,  and  the  Queen  yielded.  James  renewed  the 
attempt,  and  appointed  one  Michel  to  the  office.  Brownlow,  the 
Prothonotary,  claimed  the  fees  under  an  assize,  and  thereby  ques- 
tioned the  right  of  the  Crown  to  create  the  office .  Bacon  appeared 
for  the  Crown,  and  Coke,  his  ancient  adversary,  declared  that  he 
presented  "  a  famous  argument."  The  wisdom  of  the  speech  is 
undeniable.  The  old  constitutional  position  is  maintained.  The 
advocate  laughs  to  scorn  the  suggestion  that  the  writ  de  non 
precedendo  which  he  had  presented  is  "  a  work  of  absolute  power, 
or  a  strain  of  the  prerogative,  or  shocking  of  justice,  or  infinite 
delay."  The  only  question  for  the  judges  is  a  question  of  proce- 
dure ;  to  wit,  whether  the  King's  constitutional  right  is  to  be 
tested  in  the  King's  Bench  or  in  Chancery.  The  King  has  a  right 
to  be  a  party  when  his  prerogative  is  questioned,  and  none  can 
doubt  that  it  is  questioned  here.  "  The  King  shall  have  choice 
of  his  Courts  upon  his  demand ;  much  more  shall  he  have  it 
upon  his  defence."  The  Court  must  know  "  how  sharp-sighted 
the  law  of  England  is  on  the  King's  behalf  to  preserve  his  right 
from  loss."  All  loss  to  the  King  is  fetched  in  by  this  writ. 
"  Now,  to  say  that  the  King  cannot  grant  or  erect  any  office  de 
novo,  no  man,  I  think,  will  be  such  a  plebeian  (I  mean  both  in 
science  and  honour)  as  so  to  affirm  ;  I  will  cite  no  books  for  it ; 
you  have  the  book  of  time,  which  is  the  best  book,  and  perpetual 
practice."  The  holder  of  the  office  will  have  by  this  writ  the 
protection  of  the  King.  "  Therefore  I  will  end  with  this  to  your 
lordship  and  the  rest,  that  obedience  is  better  than  sacrifice ;  that 
is  a  voluntary  thing,  and  it  is  many  times  a  glory  or  fame  ;  but 
obedience  is  ever  acceptable."  With  which  half-threat  the 
Attorney-General  hies  him  away  to  the  King,  to  induce  him, 


FRANCIS  BACON  167 

"  because  the  times  were  as  they  were,"  to  command  the  Chief 
Justice  to  suspend  the  proceedings.  This  was  done.  Had  Charles 
possessed  such  an  adviser,  he  too  might  have  learnt  that  "  the 
times  were  as  they  were,"  and  have  kept  within  those  constitu- 
tional limits  of  the  Crown  that  Bacon  in  his  most  strenuous  and 
brilliant  advocacy  was  always  careful  never  to  overstep.  This 
fact,  did  space  permit,  might  further  be  illustrated  by  the  famous 
and  elaborate  argument  in  the  case  of  The  Jurisdiction  of  the 
Marches.  Bacon's  cautious  constitutional  position  may  be  also 
observed  by  his  attitude  in  the  proceedings  that  led  up  to  this 
case.  The  King  would  not  extend  or  withdraw  the  Royal  Pre- 
rogative as  an  object  of  legal  attack  save  "  by  the  advice  of  the 
three  estates  in  Parliament." 

Bacon  and  the  Court  of  Chancery. — The  work  of  Bacon  as  a 
judge  forms  a  chapter  of  the  history  of  law  as  yet  unwritten  in 
detail  or  indeed  at  all  adequately.  That  he  made  his  mark  in 
the  Court  of  Chancery  is,  however,  not  to  be  doubted,  brief 
though  his  rule  was  and  disastrous  its  end .  It  is  almost  impossible 
to  deal  with  the  decisions  as  set  out  in  Tothill,  but  some  references 
must  be  made  to  some  of  them.  In  Arleston  v.  Kent  bonds 
entered  into  for  procuring  a  marriage  were  cancelled.  In  Sir 
Thomas  Middleton's  Case  a  Government  department  was  com- 
pelled to  account.  In  Sacheverell  v.  Sacheverell  a  member  of  a 
Commission  of  Rebellion  who  had  allowed  a  prisoner  to  escape 
was  committed  to  prison  until  such  time  as  the  prisoner  was 
brought  in.  In  Grant  v.  Edes  the  plaintiff  made  a  conveyance 
to  feoffees  in  trust  to  the  use  of  his  infant  sons,  with  several 
remainders  over.  The  Court  enabled  him  to  sell  the  settled 
lands  to  pay  debts  contracted  after  the  date  of  the  settlement. 
In  Moreton  v.  Briggs  it  was  held  that  want  of  livery  could  not 
avoid  a  conveyance.  In  Goodfellow  v.  Morris  the  mistake  of  a 
name  in  a  conveyance  was  rectified,  and  the  lands  assured  accord- 
to  the  intention  of  the  conveying  party.  In  Morgan  v.  Richard- 
son the  plaintiff,  although  protected  by  a  writ  of  privilege,  had 
been  arrested.  He  was  freed  by  Habeas  Corpus,  and  his  arrester 
committed.  In  Huet  v.  Hurston  it  was  held  that  there  was  no 
relief  after  judgment.  In  Long  v.  Long  (C.  Hill  17  Tac.)  it  was 
held  that  a  witness  once  examined  may  be  recalled.  Lord 
Ellesmere  had  decided  the  other  way. 

When  we  turn  to  the  Ordinances  in  Chancery  issued  by  Bacon, 
we  find  that  his  Hundred  Rules  of  Court  finally  fixed  practice  in 


168  FRANCIS    BACON 

Chancery,  and  made  the  Court  of  Chancery  a  definite  court  of 
justice  under  ordered  governance,  and  not  a  mere  court  of  con- 
science dealing  out  an  erratic  measure  of  equity  in  graciously 
disordered  fashion.  To  what  extent  the  Hundred  Rules  were 
from  Bacon's  hand  it  is  perhaps  not  altogether  easy  to  tell.  It  is 
probable  that  he  codified  the  existing  practice,  which  had  been 
reduced  to  order  by  Lord  Ellesmere,  and  brought  into  an  organic 
form  by  the  aid  of  many  additions  the  scattered  orders  that 
existed  before  his  time.  It  is  natural  to  suppose  that  this  would 
be  done  by  a  man  so  imbued  with  the  idea  of  codification  as  was 
Bacon.  The  Rules  as  we  have  them  show  the  stamp  of  a  mind 
that  could  store  great  matter  in  a  little  room,  and  could  provide 
future  ages  with  a  pattern  of  practice  which,  as  laid  up  in  the 
Lord  Chancellor's  mind,  and  as  exhibited  in  his  Hundred  Ordin- 
ances, was  the  direct  ancestor  of  those  Rules  of  the  Supreme 
Court  that  to-day  are  hidden  in  the  arid  wastes  of  the  Annual 
Practice.  It  is  no  mean  title  to  juridical  fame  finally  to  have 
settled  the  procedure  in  equity  for  the  Anglo-Saxon  race.1  In 
this  alone  we  see  a  feat  that  would  justify  a  claim  to  greatness. 
But  when  we  regard  his  Century  of  Orders,  as  we  must  regard 
them,  merely  as  crumbs  from  the  feast  of  law  and  reason  which 
Francis  Bacon  offered  to  the  world,  we  can  to  some  extent 
realize  how  great  a  j  urist  was  this  great  Englishman.  He  regarded 
human  law  as  the  sister  of  physical  law.  In  studying  the  latter 
he  had  in  contemplation  "  the  general  good  of  men  in  their  very 
being,  and  the  dowries  of  nature,"  and  in  the  former  "  the  general 
good  of  men  likewise  in  society,  and  the  dowries  of  Government." 
Ihe  two  were  related  by  that  Law  of  Nature  which  he  expounded 
in  Calvin's  Case.  A  universal  rule  of  law  for  men  and  things  was 
the  ultimate  concept  of  the  man  who  took  all  law  for  his  province, 
and  believed  in  the  natural  equity  that  pervades  creation. 

1  Cf.  Ordines  Cancellarice  (London,  1698)  with  the  Ordinances  in  Chancery. 


HUGO    GROTIUS 


HUGO  GROTIUS 

IT  was  in  the  declining  years  of  the  second  epoch  into  which 
the  history  of  Jurisprudence  is  usually  divided  —  namely, 
from  the  Fall  of  the  Western  Empire  in  A.D.  476  to  the  Peace 
of  Westphalia  in  A.D.  1648  —  that  the  great  Dutch  jurist 
whose  name  stands  at  the  head  of  this  paper  lived  and 
flourished.  It  was  an  epoch  which  embraced  the  Middle  Ages 
and  reached  the  threshold  of  modern  times — a  period  marked 
by  much  stress  and  storm,  but  gradually  chastened  towards  its 
close  by  a  new  spirit  of  humanitarianism,  which,  however  dimly 
at  first,  began  to  create  fresh  ideals  and  to  establish  new  principles 
of  statecraft.  And  among  the  jurists  whose  names  are  associated 
with  this  new  movement  there  is  none  in  whom  it  finds  a  more 
precise  and  abiding  expression  than  the  scholar,  the  philosopher, 
the  statesman,  the  poet,  the  historian,  and  the  eminent  jurist 
whose  surname,  first  given  to  his  grandfather,  was  Groot,  or 
Greut,  afterwards  latinized  into  Grotius.  Judged  from  every 
standpoint  of  human  greatness,  no  surname  could  have  been 
more  appropriate  or  more  worthily  borne ;  and  his  portrait, 
painted  by  his  contemporary  Rubens,  now  in  the  Dresden  Gallery, 
shows  him  to  have  been  a  man  of  noble  bearing,  handsome  features, 
and  benevolent  expression,  while  all  accounts  agree  in  bearing 
testimony  to  his  piety,  probity,  and  profound  learning.  Dr. 
Johnson,  referring  to  him  in  a  letter  he  wrote  to  Dr.  Vyse  on 
behalf  of  a  nephew  of  Grotius,  speaks  of  him  as  one  "  of  whom 
every  learned  man  has  perhaps  learned  something." 

Family  Origin. — Born  at  Delft  on  Easter  Sunday,  April  10th, 
1583,  four  years  after  the  seven  northern  provinces  had  con- 
stituted themselves  into  a  separate  political  union  known  as  the 
Utrecht  Union,  Hugo  Grotius  was  descended  on  the  paternal  side 
from  an  aristocratic  French  family  named  Garnet.  His  great- 
grandfather was  Cornelius  Garnet,  who  married  Ermingarde,  the 
daughter  and  sole  heiress  of  Diederic  de  Groot,  Burgomaster  of 

169 


170  HUGO  GROTTOS 

Delft,  who  stipulated  that  the  issue  of  the  marriage  should  assume 
his  own  surname,  which  had  been  conferred  upon  one  of  his 
ancestors  for  eminent  services  to  the  State.  It  was  hi  accordance 
with  this  stipulation  that  the  son  Hugo  took  the  name  of  Groot, 
which  thereafter  became  the  family  surname,  and  descended 
through  John  (or  Jan),  his  father,  to  the  subject  of  the  present 
article.  Learning  appears  to  have  been  hereditary  in  the  family, 
and  John  himself  was  a  Doctor  of  Laws  and  Rector  of  the  Leyden 
High  School,  and  was  distinguished  as  an  eminent  scholar  and 
a  lawyer  of  considerable  repute.  But  Hugo,  his  son,  soon 
eclipsed  all  the  other  members  of  the  family  by  the  extraordinary 
precocity  of  his  intellect. 

Early  Precocity. — At  the  early  age  of  nine  he  was  an  accom- 
plished versifier  of  Latin  elegiacs,  and  at  twelve  he  had  entered 
the  University  of  Leyden,  where  he  became  the  pupil  of  the 
celebrated  scholar  Joseph  Scaliger,  having  already  had  his  praises 
sung  by  Douza,  who  was  said  to  be  one  of  the  princes  of  the 
republic  of  letters,  and  who  announced  that  "  Grotius  would  soon 
excel  all  his  contemporaries  and  bear  a  comparison  with  the 
most  learned  of  the  ancients."  Two  years  later  the  youthful 
prodigy  produced  an  annotated  edition  of  the  abstruse  work  of 
Martianus  Mineus  Felix  Capella  on  The  Marriage  of  Mercury 
and  Philology,  or  of  Speech  and  Learning,  in  which  he  displayed 
such  learning  and  critical  acumen  as  to  astonish  the  literary  world 
of  his  day.  His  own  account  of  the  preparation  required  for  the 
production  of  this  work  shows  the  extent  and  varied  character 
of  his  reading.  "  We  have  collated,"  he  says,  "  CapeUa  with  the 
several  authors  who  have  investigated  the  same  subjects.  In 
the  two  first  books,  we  have  consulted  those  whose  writings  con- 
tain the  sentiments  of  the  ancient  philosophers,  as  Apuleius, 
Albericus,  and  others  too  tedious  to  name  ;  on  grammar,  we  have 
compared  Capella  with  the  ancient  grammarians ;  hi  what  he 
has  said  on  rhetoric,  with  Cicero  and  Aquila ;  on  logic,  with 
Porphyry,  Aristotle,  Cassiodorus,  and  Apuleius  ;  on  geography, 
with  Strabo,  Mela,  Solinus,  and  Ptolemy,  but  chiefly  Pliny  ; 
on  arithmetic,  with  Euclid ;  on  astronomy,  with  Hyginus,  and 
others  who  have  treated  on  this  subject ;  on  music,  with  Cleonides, 
Vitruvius,  and  Boethius."  Nor  is  this  a  mere  vain  or  boastful 
enumeration  by  a  boy  of  fourteen  of  the  authorities  he  professed 
to  have  consulted,  for  his  notes  contain  internal  evidence  of  his 
close  acquaintance  with  these  ancient  writers.  In  the  same  year 


HUGO  GROTIUS  171 

he  published  a  translation  of  a  work  upon  navigation  by  Simon 
Steven  in  1586,  in  which  he  displayed  a  vast  knowledge  of 
mathematics  ;  and  in  the  following  year  he  completed  the  trans- 
lation of  the  PJienomena  of  Aratus,  a  poetical  treatise  upon 
astronomy,  which  Cicero  had  previously  translated,  but  which 
had  come  down  to  modern  times  in  an  incomplete  form.  In  the 
opinion  of  a  competent  critic,  the  Abbe  d'Olivet,  the  editor  of 
Cicero's  works,  "  the  Muse  of  Cicero  did  not  throw  the  Muse  of 
Grotius  into  the  shade,"  and  Grotius  was  complimented  on  his 
elegant  latinity  by  some  of  the  greatest  scholars  of  the  time.  So 
great  was  the  reputation  he  had  already  acquired  that  in 
A.D.  1598  he  was  asked  by  the  Dutch  Ambassador  to  France,  the 
illustrious  but  unfortunate  Barneveldt,  to  accompany  him,  and 
on  his  arrival  at  the  court  of  Henri  IV.  he  was  received  by  that 
monarch  with  many  marks  of  personal  favour.  It  was  during 
this  visit  that  he  took  the  degree  of  Doctor  of  Laws  at  Orleans. 
On  his  return  to  his  native  country  he  devoted  himself  to  the 
practice  of  the  Bar,  and  conducted  his  first  case  before  he  had 
reached  the  age  of  seventeen.  He  succeeded  at  the  Bar  beyond 
all  expectation,  and  was  appointed  Advocate-General  of  Holland, 
Zealand,  and  West  Friesland  when  he  was  only  twenty-four.  He 
\vas  indeed  well  described  as  an  adolescentem  sine  exemplo; 
juvenem  portentosi  ingenii ;  and  he  was  gifted  with  an  extra- 
ordinary memory,  of  which  many  striking  instances  are  re- 
corded. 

His  Marriage. — In  July,  1608,  Grotius  married  a  lady  of  Veere, 
in  Zealand,  of  good  family,  named  Mary  Reigersberg,  with  whom 
he  lived  for  the  rest  of  his  life  in  perfect  harmony.  She  proved  a 
devoted  wife,  and  is  said  to  have  been  an  ornament  to  him  in 
prosperity,  and  his  comfort  and  aid  in  adversity.  By  her  he  had 
three  sons  and  a  daughter  who  survived  him.  It  is  asserted  by 
some  that  George  Grote,  the  historian  of  Greece,  was  connected 
with  the  family  of  Hugo  Grotius,  though  the  evidence  is  wanting 
to  prove  this.  But  the  distinguished  Netherlands  statesman, 
Count  Van  Zuzlen  van  Nierseld,  a  former  Ambassador  of  his 
country  at  Vienna,  was  certainly  descended  in  direct  line  from 
the  daughter  of  the  celebrated  jurist,  who  was  married  to  a 
Frenchman  named  Mombas.  His  eldest  and  youngest  son  died 
without  being  married  ;  but  his  second  son,  named  Peter  de 
Groot,  became  Pensionary  of  Amsterdam,  and  died  at  the  age  of 
seventy. 


172  HUGO  QEOTIUS 

His  Religious  Tendencies. — The  son  of  parents  who  were  both 
imbued  with  a  deep  sense  of  piety,  it  was  only  natural  that  a 
youth  of  such  marvellous  talents  and  cosmopolitan  sympathies 
as  Grotius  should  have  imbibed  at  an  early  age  the  religious 
tendencies  of  the  period,  under  the  guidance  of  a  tutor  such  as 
Uitenbogaard,  who  was  destined  to  play  an  important  rdle  in 
the  subsequent  religious  controversies  which  distracted  the 
Dutch  Church.  There  were  about  this  time  two  schools  of 
religious  thought  in  the  Netherlands,  which  were  violently  divided 
on  the  dogmas  of  Free  Will  and  Predestination,  represented  by 
two  professors  of  the  University  of  Leyden — namely,  Jacob 
Arminius,  Rector  of  the  University,  and  Franciscus  Gomarus, 
one  of  the  professors.  The  former  taught  a  modified  form  of 
Pelagianism,  which  sought  to  modify  the  extreme  harshness  of 
the  doctrine  of  Predestination  which  had  been  adopted  by 
Luther,  Calvin,  and  Beza,  and  of  which  Gomarus,  on  the  other 
hand,  was  an  ardent  and  uncompromising  supporter.  The  latter 
school  being  the  more  orthodox,  as  its  followers  were  then  con- 
sidered, had  the  largest  number  of  adherents,  and  its  bitter  hatred 
towards  the  Arminians  subjected  the  latter  to  many  cruel  perse- 
cutions, which  led  to  a  formal  Remonstrance,  which  was  drawn 
up  by  the  old  tutor  of  Grotius,  Uitenbogaard,  and  submitted  to 
the  States-General.  Although  it  is  probable  that  the  sympathies 
of  Grotius  were  all  along  on  the  side  of  the  Remonstrants,  it  was 
not  until  the  death  of  Arminius,  in  1608,  that  he  really  showed  his 
own  religious  tendencies.  He  then  published  a  poem  entitled  In 
mortem  Arminii,  which  at  once  identified  him  with  the  school  of 
which  Arminius  had  been  the  guiding  spirit. 

His  mission  to  England  as  Ambassador  to  the  Court  of  James  I. ' 
in  1613  removed  him  for  a  time  from  the  sphere  of  religious  con- 
troversies, and  in  the  same  year  he  was  made  Pensionary  of 
Rotterdam,  which  he  only  accepted  on  condition  that  he  should 
not  be  deprived  of  it  against  his  will.  That  he  was  able  to  impose 
such  a  condition  shows  the  respect  in  which  he  was  still  held  by 
his  countrymen,  and  it  would  seem  that  he  abstained  at  first 
from  openly  participating  in  the  religious  quarrels  which  were 
then  becoming  more  acute.  His  natural  desire  was  for  peace, 
and  he  strove  to  bring  about  conciliation  and  a  larger  spirit  of 
toleration.  With  this  view  he  allowed  himself  to  be  nominated 
head  of  a  mission  to  the  city  of  Amsterdam,  and  he  addressed  the 
assembled  burgomasters  in  a  speech  in  the  Dutch  language,  in 


HUGO  GBOTIUS  173 

which  he  pleaded  eloquently  for  the  necessity  and  advantage  of 
religious  toleration,  especially  upon  points  of  theoretical  doctrine, 
which,  he  maintained  would  restore  tranquillity  and  peace  to  the 
Church.  But  his  eloquence  produced  no  effect^and  he  was  so 
affected  by  the  bad  success  of  his  mission,  that  he  was  seized  with 
a  fever,  which  nearly  proved  fatal  to  him.  By  degrees  his 
alienation  from  the  Lutheran  Reformed  Church  became  more 
and  more  evident,  and  involved  him  in  the  persecution  which 
overtook  his  old  friend  Barneveldt.  Finally  he  was  arrested  on 
August  29th,  1618,  with  the  latter  and  another  fellow-thinker 
named  Hogerbrets,  the  Pensionary  of  Leyden,  at  the  instance  of 
Prince  Maurice  of  Nassau,  and  brought  to  trial  upon  charges  of 
high  treason  and  of  disturbing  the  established  religion  of  the 
United  Provinces,  and  also  of  being  the  authors  of  the  Insurrection 
of  Utrecht.  The  arrest  was  surreptitiously  effected,  and  a  special 
tribunal  of  twenty-four  (some  authorities  say  twenty-six)  com- 
missioners was  appointed  to  conduct  the  trial.  The  prisoners 
objected  to  the  constitution  of  the  tribunal,  urging  that  the 
States  of  Holland  were  their  only  competent  judges,  and  they  also 
pointed  out  that  many  of  the  commissioners  were  their  accusers 
and  notoriously  prejudiced  against  the  Arminians.  But  these 
objections  were  all  overruled ;  the  prisoners  were  condemned. 
The  aged  Barneveldt,  then  in  his  seventy-second  year,  was  sen- 
tenced to  death,  which  was  duly  carried  out,  and  Hogerbrets  and 
Grotius  to  perpetual  imprisonment,  the  former  in  his  own  house, 
and  the  latter  in  the  Castle  of  Louvestein,  in  South  Holland,  at 
the  point  of  the  island  formed  by  the  Vaal  and  the  Meuse.  Grotius 
reached  the  castle  on  June  6th,  1 61 9,  and  for  a  time  his  imprison- 
ment was  of  a  very  rigid  character  ;  but  by  degrees  this  severity 
was  to  some  extent  relaxed,  and  his  wife  was  allowed  to  see  him 
twice  a  week,  and  he  was  also  permitted  to  receive  books  from 
his  friends  and  to  correspond  with  them  except  on  politics.  This 
indulgence  furnished  an  opportunity  for  escape,  which  was  quicldy 
seized  and  carried  out  by  his  resolute  and  devoted  wife. 

It  had  become  customary  for  Grotius  to  receive  a  chest  of  books 
and  linen  for  his  use  at  regular  intervals,  and  although  this  chest 
was  at  first  rigorously  examined  by  his  guards,  their  vigilance  was 
gradually  relaxed,  and  the  chest  was  allowed  to  enter  his  apart- 
ment without  suspicion.  His  wife  had  observed  this  laxity,  and 
accordingly  devised  a  plan  by  which  Grotius  was  to  escape  in 
one  of  these  chests.  As  a  preliminary  move  she  represented  that 


174  HUGO  QROTIUS 

Grotius  was  becoming  ill  through  over-study,  and  expressed  her 
intention  of  taking  all  his  books  away  from  him  and  restoring 
them  to  their  owners.    The  next  step  was  to  introduce  a  suffi- 
ciently large  chest,  ostensibly  for  the  purpose  of  removing  the 
books,  but  really  with  the  object  of  secreting  her  husband  inside 
of  it,  and  thus  effecting  his  escape.     Holes  were  bored  into  the  box 
to  let  in  air,  and  when  everything  was  ready,  Grotius  was  placed  in 
the  box,  while  his  wife  got  into  his  bed,  having  previously  in- 
formed his  guards  that  her  husband  was  ill  and  was  not  to  be 
disturbed.    The  device  was  well  carried  out,  and  the  box,  with 
Grotius   inside,   was   safely   conveyed  to   Gorcum,   where   an 
Arminian  friend  received  it  and  released  Grotius  from  his  peril. 
The  wife  remained  behind  and  fearlessly  informed  the  guards, 
when  a  sufficient  time  had  elapsed  to  insure  her  husband's  safety, 
that  their  prisoner  had  escaped.    The  governor  of  the  prison  at 
once  ordered  her  into  close  confinement ;  but  to  the  honour  of  the 
States-General  be  it  added  that  she  was  released  after  a  few  days, 
and  allowed  to  take  with  her  everything  that  belonged  to  her  hi 
the  Castle.    Thus  after  twenty  months  of  unjust  incarceration, 
during  which  he  produced  the  treatise  in  Dutch  verse  on  the 
Truth  of  the  Christian  Religion,  which  he  afterwards  translated  into 
Latin  prose,  and  which  was  much  admired  for  its  terseness,  just 
reasoning,  accuracy,  and  power,  Grotius  became  an  exile  from 
his  native  country,  which  he  did  not  cease  to  love  with  the  devotion 
of  the  true  patriot  he  was.     It  cannot  be  denied,  however,  that 
his  Protestantism  was  of  a  very  mild  character,  and  his  epistles 
contain  very  strong  evidence  of  a  decided  leaning  towards  the 
Roman  Catholic  Church,  which  appealed  to  him  (apart  from  all 
questions  of  dogmatic  theology,  which  had  little  influence  with 
him)  on  the  ground  of  a  venerable  and  unbroken  authority.    At 
the  same  time  many  other  sects  claimed  him  as  an  adherent,  and 
this  circumstance   furnished  Menage  with  the  matter  for  the 
following  epigram  : 

"Smyrna,  Rhodes,  Colophon,  Salamis,  Chios,  Argos,  Athense, 

Sideroi  certant  vatis  do  patria  Homeri ; 
Grotiadae  certant  do  religione,  Socinus, 
Arrius,  Arminius,  Calvinus,  Roma,  Luthorus." 

His  Exilo  and  Residence  in  France. — With  his  exile  Grotius 
may  be  said  to  have  entered  upon  the  second  stage  of  his  public 
life,  which  was  destined  to  be  even  more  distinguished  and  more 
fruitful  in  literary  labours  than  his  earlier  years,  and  it  was  during 


HUGO  GROTTOS  175 

this  period  that  he  produced  the  monumental  work  De  Jure  Belli 
et  Pads,  which  alone  was  sufficient  to  immortalize  his  name. 
He  found  an  asylum  in  France,  where  he  had  many  admirers,  and 
where  he  was  graciously  received  by  the  king  (Louis  XIII.),  who 
settled  a  pension  of  3,000  livres  upon  him.  But  this  pension  was 
very  irregularly  paid,  as  Cardinal  Richelieu,  who  was  then  all- 
powerful,  required  such  absolute  and  unqualified  devotion  as  a 
quid  pro  quo,  that  Grotius  was  unwilling  to  barter  his  inde- 
pendence, and  incurred  the  displeasure  of  the  Cardinal,  who  made 
him  soon  feel  that  he  was  master  of  the  situation.  Grotius  now 
applied  himself  to  the  writing  of  his  Apology,  which  he  dedicated 
to  the  people  of  Holland  and  West  Friesland,  and  in  which  he  ably 
defended  himself  against  the  charges  upon  which  he  had  been 
unjustly  condemned.  This  work,  which  he  originally  composed 
in  the  Dutch  language,  but  afterwards  translated  into  Latin, 
caused  a  great  sensation  in  his  own  country,  but  it  incensed  the 
States-General  more  than  ever  against  him,  and  they  issued  an 
edict,  in  which  they  proscribed  it,  and  forbade  all  persons  to  have 
it  in  their  possession  under  the  penalty  of  death.  This  un- 
generous edict  shattered  the  lingering  hopes  he  may  have  enter- 
tained of  returning  to  the  land  of  his  birth,  and  made  him  even 
anxious  for  his  personal  safety.  Acting  upon  the  advice  of  his 
friends,  he  applied  for  and  obtained,  on  February  26th,  1623, 
letters  of  naturalization  from  the  French  king,  who  professed  to 
take  him  under  his  special  protection.  Some  years  later,  in  1631, 
Grotius  was  induced  by  some  protestations  of  friendship  from 
Prince  Frederick  of  Orange,  and  relying  on  the  general  good  effect 
his  Apology  had  created  in  Holland,  to  return  there,  and  once 
more  claim  the  hospitality  of  his  countrymen.  But  he  was 
doomed  to  disappointment.  Bigotry  still  prevailed,  and  he  was 
banished  a  second  time.  Grotius  now  quitted  Holland,  never  to 
see  it  again.  He  first  went  to  Hamburgh,  and  two  years  later  (in 
1634)  he  entered  the  diplomatic  service  of  Sweden,  and  in  the 
following  year  was  appointed  Swedish  Ambassador  at  the  French 
Court,  a  position  which  was  held  with  honour  and  distinction  for 
ten  years,  and  proved  himself  in  more  than  one  difficult  diplomatic 
negotiation  more  than  a  match  for  the  crafty  Richelieu.  It  was 
during  this  eventful  period  that  he  completed  his  History  of  the 
Netherlands  and  translated  the  History  of  the  Goths  and  Vandals, 
by  Procopius .  He  also  wrote  a  work  on  The  Origin  of  the  A  merican 
Nations. 


176  HUGO   OROTIUS 

His  Death.— The  conduct  of  the  Swedish  Embassy  by  Grotius 
won  the  warm  approval  of  his  staunch  friend  the  Chancellor 
Oxenstiern,  and  Queen  Christina,  the  only  child  of  the  great 
Gustavus,  was  also  very  favourable  to  him.     But  Grotius  took 
umbrage  at  the  Queen  sending  a  favourite  of  hers  in  an  ambiguous 
character  to  Paris,  and,  urging  his  age  and  increasing  infirmities 
as  an  excuse,  he  applied  for  his  recall,  which  was  reluctantly 
granted,  accompanied  with  most  appreciative  acknowledgments 
of  his  eminent  services,  which  the  Queen  declared  she  would  never 
forget.     Grotius  accordingly  left  Paris,  and  arrived  at  Hamburgh 
on  May  16th,  1645,  and  from  thence  he  travelled  to  Liibec  and 
Wismar,  receiving  everywhere  the  most  honourable  reception. 
At  Wismar  the  Admiral  of  the  Swedish  fleet  placed  a  man-of-war 
at  his  disposal  to  transport  him  to  Colmar,  from  whence  he  pro- 
ceeded by  land  to  Stockholm.    The  Queen  was  then  at  Upsal, 
but  on  being  told  that  Grotius  had  arrived  at  the  capital,  she  at 
once  returned  to  meet  him,  and  gave  him  a  long  audience  on  the 
following  day,  when  she  again  assured  him  of  her  royal  favour, 
and  begged  him  to  continue  in  her  service  as  a  Councillor  of  State. 
For  some  reason  which  is  not  known  to  his  biographers  Grotius 
had  resolved  to  leave  Sweden,  and  when  the  Queen  discovered 
that  he  was  determined  to  go,  she  presented  him  with  a  handsome 
present  in  money  and  appointed  a  vessel  to  convey  him  to  Liibec. 
Grotius  embarked  on  August  12th,  1645,  but  was  overtaken  by 
a  violent  storm,  was  shipwrecked,  and  was  obliged  to  take  shelter 
in  a  port  fourteen  miles  distant  from  Dantzic.    Thence   he 
travelled  by  land  in  an  open  waggon ;  but  his  health  had  been 
fast  failing,  and  when  he  reached  Rostock  (on  August  26th,  1645) 
he  was  too  ill  to  proceed  farther.    A  physician  was  called  in  to 
attend  him,  but  it  was  soon  evident  that  recovery  was  hopeless. 
Grotius,  conscious  that  his  end  was  near,  asked  to  see  a  clergyman, 
and  John  Quistorpius,  a  Professor  of  Divinity  at  Rostock,  attended 
him  in  his  last  earthly  moments.     Quistorpius  found  him  at  the 
point  of  death,  but  still  conscious  and  able  to  speak,  and  it  is 
from  the  hands  of  the  professor  that  we  have  a  pathetic  account 
of  the  dying  words  of  the  phoenix  of  Literature,  as  he  calls  Grotius. 
"  I  found  him,"  he  says,  "  almost  at  the  point  of  death.  ...      I 
went  on  and  told  him  that  he  must  have  recourse  to  Jesus  Christ, 
without  Whom  there  is  no  salvation.     He  replied  :  '  I  place  all 
my  hope  in  Jesus  Christ.'     I  began  to  repeat  aloud,  in  German, 
the  prayer  which  begins  '  Herr  Jesu  '  ;  he  followed  me  in  a  very 


HUGO  GROTIUS  177 

low  voice,  with  his  hands  clasped.  When  I  had  done,  I  asked  him 
if  he  understood  me.  He  answered,  '  I  understand  you  very  well.' 
I  continued  to  repeat  to  him  those  passages  of  the  word  of  God 
which  are  commonly  offered  to  the  remembrance  of  dying  persons, 
and  asking  him  if  he  understood  me,  he  answered  :  '  I  heard  your 
voice,  but  did  not  understand  what  you  said.' '  These  were  the 
last  words  of  a  fleeting  spirit  whose  earthly  course  had  been  run, 
and  which  then  ceased  to  animate  the  body  of  the  great  Dutchman, 
just  as  midnight  tolled  the  close  of  one  and  the  beginning  of  a  new 
day.  His  body  received  temporary  sepulture  in  the  principal 
church  of  the  city,  but  was  afterwards  exhumed  and  finally 
deposited  in  the  mausoleum  of  his  ancestors  at  Delft.  His 
epitaph,  written  by  himself,  is  mournfully  reminiscent  in  its  allu- 
sion to  his  exile,  and  runs  with  characteristic  brevity  as  follows  : — 

GROTTOS  HIC   HUGO   EST,    BATAVUM 

CAPTTVUS  ET  EXSUL, 
LEGATUS   REGNI,    SUECTA   MAGNI,   TUI. 

His  wife  survived  him,  and  is  said  to  have  died  at  The  Hague  in 
the  communion  of  the  Remonstrants. 

His  Character. — There  is  no  better  means  of  judging  the  char- 
acter of  this  great  man  and  of  forming  a  correct  estimate  of  the 
manysidedness  of  his  richly  endowed  genius  than  by  studying  his 
collection  of  letters  published  in  Amsterdam  in  the  year  1687. 
His  large  sympathies,  his  freedom  from  all  bigotry  yet  deep 
religious  sentiment,  his  abiding  interest  in  all  current  topics,  his 
profound  and  almost  universal  knowledge,  and  above  all  his 
earnest  desire  to  promote  peace  and  union  amongst  the  Christian 
Churches,  are  here  all  brought  before  us  in  the  familiar  style  of 
confidential  correspondence  with  his  intimate  friends.  A  spirit 
of  candour  and  truthfulness  pervades  all  his  letters :  not  a 
trace  of  bitterness  or  ungenerous  criticism  is  anywhere  to  be 
found  in  them.  They  are  essentially  the  letters  of  a  pious,  learned, 
and  thoughtful  man  who  is  keenly  interested  in  the  political, 
literary,  and  religious  questions  of  the  day,  which  he  approaches 
from  the  standpoint  of  a  cultured  intellect,  devoid  of  bias  or 
prejudice,  and  with  no  other  aim  or  desire  than  to  reach  a 
just  conclusion.  Even  his  enemies  recognized  his  worth,  and 
Salmasius  declared  that  he  had  "  rather  resemble  Grotius  than 
enjoy  the  wealth,  the  purple,  and  grandeur  of  the  Sacred  College." 
As  an  instance  of  his  impartiality  as  an  historian,  it  is  pointed  out 

13 


178  HUGO   GEOTIUS 

that  in  his  History  of  the  Netherlands  he  does  full  justice  to  the 
merits  of  Prince  Maurice  of  Nassau,  although  he  had  much  ground 
for  personal  resentment  for  the  injustice  he  suffered  at  the  hands 
of  that  prince.  It  thus  appears  that  unmerited  exile  did  not  warp 
his  judgment  or  stifle  his  patriotism,  just  as  religious  controversies 
did  not  affect  his  charity,  or  the  contests  of  a  political  career 
cause  him  to  deviate  a  hair's  breadth  from  the  path  of  honour  and 
rectitude.  His  name  has  been  carried  down  the  stream  of  time 
untarnished,  while  his  fame  as  a  scholar  and  jurist  seems  to  in- 
crease rather  than  diminish. 

His  Magnum  Opus. — Of  all  his  numerous  works,  the  one  upon 
which  his  reputation  most  solidly  rests  is  his  celebrated  treatise 
De  Jure  Belli  et  Pads,  which  has  secured  for  him  the  lasting 
reverence  of  posterity.    In  an  age  which  produced  as  his  con- 
temporaries a  Scaliger,  a  Bellarmin,  a  Mariana,  a  Sarpi,  a  Bacon, 
a  Pascal,  and  a  Hobbes  it  is  an  epoch-making  work  of  this  kind 
which,  as  Calvo  justly  says,  distinguishes  the  true  man  of  genius 
from  the  ordinary  publicist.    No  work,  according  to  general 
testimony,  has  ever  received  more  universal  approbation  or  has 
maintained  its  reputation  to  so  high  a  degree  as  this  treatise  of 
Grotius .    He  began  it  in  the  country  house  of  Balagni,  near  Senlis, 
placed  at  the  author's  disposal  by  his  friend  Jean  Jacques  de 
Mesmes,  in  the  month  of  June,  1623,  and  practically  completed 
it  in  June  of  the  following  year  ;  a  remarkable  performance  even 
when  we  bear  in  mind  that  the  discovery  of  a  manuscript  in  1868 
entitled  De  Jure  Prcedce,  shows  that  the  subject  of  the  treatise 
had  already  occupied  his  attention  so  early  as  1604,  and  that  he 
was  led  to  its  investigation  in  the  active  pursuit  of  his  professional 
vocation,  as  advocate  for  the  Dutch  East  India  Company,  which 
was  formed,  it  is  true,  for  the  peaceful  purposes  of  commerce,  but 
had  been  compelled,  like  the  English  company,  to  repel  force  by 
force .    The  question  submitted  to  Grotius  was  as  to  the  legality  of 
a  capture  made  by  one  of  the  Company's  captains  named  Heem- 
skirk,  a  claim  which  was  contested  in  Holland  on  the  ground  that 
a  private  company  had  no  right  to  make  prize  captures.     Grotius 
undertook  to  prove  that  the  capture  was  lawful,  and  the  manu- 
script treatise  discovered  by  Professor  Fruin  was  the  outcome  of 
this  effort.    It  is  probable  that  Grotius  was  induced  by  his  friend 
Peiresc  to  recast  the  work  with  the  light  of  his  additional  experi- 
ence during  the  first  years  of  his  exile  .as  a  mental  diversion, 
calculated  to  engross  his  thoughts  and  lighten  the  sorrow  and 


HUGO  GROTIUS  179 

burden  of  banishment.  The  circumstances  of  the  time  also 
supplied  an  additional  motive  for  such  a  literary  undertaking. 
The  Thirty  Years'  War,  in  the  midst  of  which  he  wrote,  had  been 
waged  with  such  relentless  fury,  and  the  miseries  of  such  a  pro- 
tracted and  unregulated  war  had  pressed  so  heavily  upon  a 
sensitive  nature  like  his,  that  he  sought  to  discover  some  rules 
by  which  its  horrors  and  atrocities  should  be  mitigated  in  the 
future.  "I  saw  prevailing,"  he  tells  us  in  his  Prolegomena 
(Art.  28),  "throughout  the  Christian  world  a  licence  in  making 
war  of  which  even  barbarous  nations  would  have  been  ashamed  ; 
recourse  being  had  to  arms  for  slight  reasons  or  no  reason  ;  and 
when  arms  were  once  taken  up,  all  reverence  for  divine  and 
human  law  was  thrown  away,  just  as  if  men  were  thenceforth 
authorized  to  commit  all  crimes  without  restraint."  The  sight  of 
these  atrocities,  as  he  tells  us,  had  led  many  estimable  men  to 
declare  arms  forbidden  to  Christians  ;  but  for  his  own  part  he  took 
the  more  practical  and  moderate  view  to  provide  a  remedy  for 
both  disorders,  "  both  for  thinking  that  nothing  [relating  to  war] 
is  allowable,  and  that  everything  is."  He  felt  to  some  extent 
prepared  for  such  a  task  as  he  conceived  by  having  previously 
practised  jurisprudence  in  his  own  country,  from  which  he  had 
been  "  unworthily  ejected  "  ;  and  he  hoped  now  in  exile  to  pro- 
mote the  same  science  by  further  diligent  effort.  He  claims  that 
none  of  his  precursors  had  treated  the  subject  scientifically,  and 
contends  that  the  only  way  to  do  so  successfully  is  by  separating 
Instituted  Law  from  Natural  Law.  "For  Natural  Law,"  he 
observes,  "  as  being  always  the  same,  can  be  easily  collected  into 
an  Art ;  but  that  which  depends  upon  institution,  since  it  is  often 
changed,  and  is  different  in  different  places,  is  out  of  the  domain 
of  Art."  Special  books  had  indeed  been  previously  written  con- 
cerning the  laws  of  war,  but  their  authors,  he  complains,  had 
mingled  and  confounded  natural  law,  divine  law,  law  of  nations, 
civil  law,  and  canon  law.  He  acknowledges,  however,  his  in- 
debtedness to  Balthazar  Ayala  (who  wrote  a  treatise,  De  Jure  ct 
Officiis,  which  was  printed  in  Amsterdam  in  1597),  and  Albericus 
Gentilis,  who  also  wrote  a  treatise,  De  Jure  Belli.  The  titles  of 
the  chapters  of  the  latter  work  run  almost  parallel  to  those  of 
the  first  and  third  books  of  Grotius,  and  some  of  the  historical 
examples  cited  in  the  work  of  Gentilis  are  also  mentioned 
by  Grotius. 

But  here  the  extent  of  borrowing  by  the  Dutch  jurist  from  the 


180  HUGO    GEOTITJS 

earlier  author  seems  to  end,  for,  as  Hallam  points  out,  Grotius 
deals  with  the  subject  of  each  chapter  with  much  greater  fulness, 
and  is  throughout  a  philosopher,  while  Gentilis  is  a  mere  compiler. 
"\Yhat  dominates  the  treatise  of  Gentilis  is  the  absolute  authority 
of  the  texts  and  precedents  which  he  quotes,  and  to  which  he 
slavishly  adheres.    Grotius,  on  the  other  hand,  though  he  ran- 
sacks the  whole  of  ancient  and  later  literature,  only  cites  texts 
and  precedents  to  support  his  own  independent  judgment,  for 
which  he  gives  his  own  reasons.    No  one,  in  fact,  as  Pradier- 
Fodere  observes,  prior  to  Grotius  knew  how  to  unite  to  the  same 
extent  the  authority  of  reason  combined  with  that  of  experience  ; 
his  is  the  fruitful  alliance  of  philosophy  and  history,  which  has 
so  profoundly  impressed  the  modern  political  world.    The  method 
which  our  author  adopts  is  the  inductive  one.    The  individual 
man  and  his  social  instinct  is  the  factor  producing  law  and  the 
State  ;  but  this  appetitis  socialis  is  not  the  mere  need  for  a  life 
spent  somehow  (non  qualiscunque)  in  community  with  his  fellow- 
men,  but  tranquilly  and  as  a  reasonable  being  (sed  tranquillce,  et 
pro  sui  iideRvdus  modo  ordinatce),  for  the  welfare  of  others  in 
contrast  to  mere  utility  irrespective  of  all  ethical  motives.     It  is 
this  tendency  to  the  conservation  of  society,  which  is  in  agreement 
with  the  nature  of  the  human  intellect,  that  forms  the  source  of 
Jus  or  Natural  Law,  properly  so  called.    To  this  Jus  belongs  the 
rule  of  abstaining  from  that  which  belongs  to  other  persons  ;  and 
if  we  have  in  our  possession  anything  of  another's,  the  restitution 
of  it,  or  of  any  gain  which  we  have  made  from  it ;  the  fulfilling  of 
promises,  and  the  reparation  of  damage  done  by  fault.     In  short, 
the  special  office  of  Jus  properly  so  called  is  "  to  leave  to  another 
what  is  his,  to  give  to  him  what  we  owe."     In  a  general  sense  Jus 
is  divided  into  Natural  Law  and  Voluntary  or  Positive  or  Insti- 
tuted Law.    The  former  is  the  dictate  of  right  reason,  indicating 
what  is  in  agreement  or  disagreement  with  the  rational  and  social 
nature  of  man,  and  therefore  either  commanded  or  forbidden  by 
the  Author  of  Nature  ;  the  latter  is  subdivided  into  divinum  or 
humanum.  according  as  it  is  ordained  by  God  or  prescribed  by 
man,  either  as  a  rule  of  the  Jus  Civile  or  of  the  Jus  Gentium.     In 
this  way  he  leads  up  to  the  humane  principle  which  pervades  his 
whole  treatise,  that  between  individuals,  as  between  nations,  it  is 
not  Utility  but  a  common  law  of  Rights  which  is  of  force  in 
governing  their   mutual   relations.    To    have   established   this 
principle  and  to  have  extended  its  operation  to  the  conduct  of 


HUGO   GROTIUS  181 

war  was  to  have  justified  his  claim  to  be  regarded  as  the  founder, 
or,  as  Marten  calls  him,  the  father,  of  the  science  of  International 
Law,  and  to  be  called,  as  Vico  suggests,  "  the  juristconsult  of  the 
human  race."    That  his  work  is  not  perfect,  that  he  does  not 
conceive  as  clearly  as  some  later  jurists — like  Christian  Thomasius, 
for  instance — have  done  the  distinction  between  religion  on  the 
one  hand,  and  law  and  morality  on  the  other,  and  that  he  has  not 
completely  succeeded  in  disentangling  himself  from  the  bewilder- 
ing maze  of  incoherent  and  arbitrary  notions  of  ethical  philosophy 
which  prevailed  in  his  time,  may  be  conceded  without  detracting 
from  his  general  merits,  as  one  who,  in  the  midst  of  a  cruel  and 
desolating  war,  was  the  first  to  discover  a  principle  of  right  and  a 
basis  of  society  which  was  not  derived  from  the  Church  or  the 
Bible,  nor  in  the  insulated  existence  of  the  individual,  but  in  the 
social  relations  of  men,  and  to  make  it  thus  easy  for  those  who 
followed  him  to  broaden  the  pathway  he  had  broken,  and  to 
elaborate   his  science.    Thus  it   was  through  the  treatise  of 
Grotius  that  the  idea  of  a  law  of  nature  came  to  influence  the 
ethical  and  political  speculations  of  Locke,  Rousseau,  and  a  host 
of  later  writers.     So  that,  whatever  defects  and  confusion  there 
may  be  in  the  theory  of  Grotius,  his  great  work  still  commands 
respect  throughout  Europe,  and  the  opinion  of  Mackintosh  no 
doubt  expresses  the  prevailing  view  of  the  learned  world  of  the 
present  day.     "It  is  perhaps,"  he  says,  " the  most  complete 
[work]  that  the  world  has  yet  owed,  at  so  early  a  stage  in  the 
progress  of  any  science,  to  the  genius  and  learning  of  one  man." 
Hallam  has  also  vigorously  defended  Grotius  against  the  criticisms 
of  Dugald  Stewart,   which  were  not   characterized  by   much 
acumen  or  sobriety  of  judgment,  and  every  sentence  of  which,  it 
is  no  exaggeration,  in  the  opinion  of  Hallam  to  say,  would  lie 
open  to  counter  and  destructive  criticism.  Stahl  again,1  is  another 
severe  critic,  who  sees  in  the  doctrine  of  Grotius  an  attempt  to 
make  the  whole  scheme  of  Natural  Law  in  its  final  analysis  rest 
on  the  obligation  of  compacts,2  which  is  likewise  the  Mother  of 
Civil  Bights,  and  which  only  needed  the  further  development  it 
received  at  the  hands  of  Kant  and  Rousseau  to  lead  directly  to 
the  French  Revolution.    Grotius,  in  fact,  makes  obligation  the 
dividing-line  between  a  rule  of  moral  right  obligans  ad  id  quod 
rectum  est  and  consilia  honesta,  a  sort  of  counsel  of  perfection 

1  Philosophic  des  Rechtes,  vol.  i.,  pp.  158-170. 

2  See  Prolegomena,  s.  15,  16. 


182  HUGO    GROTITTS 

which  is  not  included  in  Jus  or  Law  (legis  aut  juris  nomine  non 
Veniunt,  1.1.9).  It  was  Grotius,  Stahl  contends,  who  first  gave 
expression  to  the  notion  that  the  State  has  no  authority  in  itself 
over  men  otherwise  than  by  virtue  of  a  compact,  and  it  has  no 
other  purpose  to  serve  but  that  of  individual  men.  It  is  thus  the 
germ  of  that  theory  which  a  century  later  was  to  overwhelm  the 
political  order  of  Europe  ;  like  a  mere  snowflake,  it  is  true,  at 
first,  but  which,  set  loose  from  the  crest  of  a  mountain,  gains 
increasing  volume  in  its  whirling  descent,  until  it  falls  at  length 
with  the  accumulated  force  of  an  avalanche  into  the  depths  of 
the  valley  below.  But  despite  all  adverse  criticism,  we  cannot 
forget  that  it  was  Grotius  who  gave,  by  this  treatise,  the  death- 
blow to  the  Machiavellian  policy  des  Lugs  und  Trugs,  as  Ahrens 
calls  it,2  and  rendered  possible  the  Peace  of  Westphalia,  which 
marked  the  commencement  of  a  new  era  proclaiming  the  legiti- 
macy of  reform,  and  consecrated  the  complete  equality  before  the 
law  of  all  religions.  So  large  was  the  demand  for  this  work  that 
it  passed  through  no  less  than  forty-five  editions  up  to  A.D.  1758, 
and  became  a  textbook  in  all  European  universities.  But  the 
author  himself  derived  little  pecuniary  profit  from  it,  his  hono- 
rarium consisting  of  two  hundred  free  copies,  of  which  he  had  to 
give  away  a  large  number  to  friends,  to  the  French  King,  and  to 
the  principal  courtiers  at  the  court  of  France,  the  remaining 
copies  being  sold  at  a  crown  apiece,  which  did  not  even  recoup 
him  his  actual  outlay.  The  great  Gustavus  Adolphus  of  Sweden 
so  highly  prized  the  work  that  he  carried  it  with  him  in  his  wars, 
and  a  copy  was  found  under  his  pillow  after  the  battle  of  Liitzen. 
On  the  other  hand,  it  was  condemned  by  the  Papacy  and  entered 
in  the  Index  Expurgatorius,  a  condemnation  which  Barbeyrac 
quietly  observes,  was  really  the  highest  honour,  for  otherwise  one 
might  have  erroneously  believed  that  the  author  favoured  the 
principles  and  interests  of  a  monarchy  destructive  of  all  the  laws 
of  nature  and  of  nations.3 

His  Remaining  Works. — Besides  those  already  mentioned, 
Grotius  was  also  the  author  of  the  following  works  : 

(1)  The   Comparative   Merits   of  the  Athenian,   Roman,    and 
Batavian  Nations  (1602). 

(2)  Mare  Liberum  (de  Jure  quod  Batavis  competit  ad  Indica 

1  Philosophic  des  Rechtes,  p.  169,  2nd  edition. 

2  Naturrecht,  s.  16,  p.  93. 

3  P.  7,  Preface  to  Translation. 


HUGO    GROTIUS  183 

commercia),  a  notable  treatise  in  which  he  maintained,  against 
the  pretensions  of  the  Portuguese  that  the  Eastern  Seas  were 
their  private  property,  that  all  oceans  are  free  and  cannot  be 
appropriated  by  any  one  nation.  This  essay,  which  is  really  a 
chapter  of  the  De  Jure  Prcedce,  was  printed  separately  in  1609, 
without,  as  Grotius  tells  us,  his  permission,  and  appears  to  have 
aroused  little  attention  at  first.  But  in  1632  the  doctrine  laid 
down  by  Grotius  was  vigorously  assailed  by  Selden  in  his  Mare 
Clausum,  in  which  the  right  of  England  to  exclude  the  fishermen 
of  Holland  from  seas  which  she  then  claimed  as  her  own  was 
sustained  with  a  profusion  of  learning  which  Grotius  was  the  first 
to  acknowledge.  But  while  Selden  was  fitly  honoured  by  his 
own  king  and  country  for  his  patriotic  effort  to  maintain  a  doctrine 
which  coincided  with  the  insular  position  as  well  as  with  the 
national  pride  in  the  maritime  supremacy  of  England,  the  country- 
men of  Grotius  reserved  nothing  better  for  him  than  imprison- 
ment and  exile.  The  lapse  of  three  centuries  has,  however, 
vindicated  the  freedom  of  navigation  on  the  open  seas  claimed 
by  Grotius.  And  modern  international  jurisprudence  has  since 
adopted  the  theory  propounded  by  Bynkershoek  in  his  De 
Dominio  Maris  of  the  cannon-shot  limit.  Russia  indeed  en- 
deavoured in  the  last  century  to  revive  the  old  controversy  in 
connection  with  Behring's  Sea  and  Alaska,  and  still  more  recently 
the  United  States  claimed,  as  successors  to  Russian  dominion 
over  Alaska,  beyond  the  Bynkershoek  limit,  but  ineffectually.1 

(3)  Hugonis  Grotii  Poemata  Omnia,  first  published  in  1616,  con- 
taining a  collection  of  his  patriotic  poems,  epigrammata,  elegies, 
marriage  songs,  silvse,  and  three  dramas,  which,  if  they  do  not 
entitle  him  to  be  ranked  as  a  poet  of  genius,  are  at  all  events 
compositions  of  considerable  merit  in  point  of  scholarship  and 
elegance  of  diction. 

(4)  Excerpta   ex  Tmgediis  et  Comediis  Orcecis,   emendata  ex 
Manuscriptis  et  hatinis  Versibus  reddita  (1626). 

(5)  Euripidis  Traged.  Phenissce,  emendata  ex  Manuscriptis,  et 
Latina  Facta  ab  Hugone  Grotio  (1630). 

(6)  Lucani  PJmrsalia,  sive  de  Bello  Civili  inter  Ccesarem  et 
Pompejum,  libri  X.  (1609),  a  valuable  edition  with  a  carefully 
revised  text  and  critical  notes. 

(7)  Florilegium  Stobcei  (1622),  the  Greek  text  with  the  Latin 
translation  of  the  poetical  passages  from  the  ancient  poets  ;  and 

1  Trendelenburg,  Naturrecht,  s.  220,  p.  673. 


184  HUGO    GROTITTS 

it  was  in  the  spirit  of  the  collection  of  Stobaeus,  which  embraced 
several  hundred  excerpts,  that  Grotius  a  few  years  afterwards 
(1626)  published  a  continuation  of  the  same  in  his  own  excerpta 
from  the  Greek  tragedians  and  comedians  referred  to  above 
under  (4). 

Finally,  at  the  age  of  sixty,  we  still  find  the  indefatigable 
scholar  preparing  a  learned  and  metrical  Latin  translation  of  the 
Greek  Anthology,  according  to  a  Greek  manuscript  text  which 
Salmasius  had  discovered  in  the  year  1606  in  the  celebrated 
Bibliotheca  Palatina  at  Heidelberg,  which  he  did  not  live  to  see 
published,  but  which  was  afterwards  edited  by  a  countryman  of 
his  own  and  printed  with  the  Greek  text  in  the  year  1795.  In 
this,  as  in  all  his  works,  he  displays  the  same  desire  after  thorough- 
ness, elegance,  and  accuracy,  looking,  as  he  tells  us  in  his  own 
graceful  verse,  merely  for  the  gratification  of  his  peaceful  desires 
and  expecting  his  reward  from  a  grateful  posterity  : 

"  Accipe,  sed  placide,  quae,  si  non  optima,  cert6 

Expressit  nobis  non  mala  pacis  amor. 
Et  tibi  die,  nostro  labor  hie  si  displicet  aevo, 
A  grata  pretium  posteritate  feret." 

Such,  briefly  told,  was  the  life  and  work  of  one  of  the  most 
remarkable  prodigies  of  the  human  intellect  which  the  world 
perhaps  has  ever  produced — a  veritable  giant  among  intellectual 
giants,  as  to  whom  posterity  has  long  confirmed  the  prophetic 
words  of  Henri  IV.  of  France,  pronounced  when  Grotius  was  still 
in  his  early  teens — Voild,  le  miracle  de  la  HoUande  ! 

The  following  are  the  principal  authorities  consulted :  Jean  Barbeyrac's 
French  translation  of  the  De  Jure  Belli  et  Pacis  (Amsterdam,  1724) ;  M.  P. 
Pradior-Fodere's  French  translation  of  same  (3  vote.,  Paris,  1867) ;  WhewelTs 
edition  of  same  work  (3  vols.,  Cambridge  University  Press) ;  same  work  done 
into  English  by  several  hands,  with  Life  of  author  (London,  1715) ;  Life  of 
Grotius,  by  Charles  Butler  (London,  1826) ;  Hugo  Grotius,  by.  L.  Neumann 
(Berlin,  1884);  Opinions  of  Orotius,  by  D.  P.  de  Bruyn  (London,  1894); 
Hallam's  Introduction  to  the  Literature  of  Europe  (4  vols.,  1864) ;  Geschichie 
der  Kechtsphilosophie.  by  Friedrich  Julius  Stahl  (Heidelberg,  1847) ;  Calvo, 
Le  Droit  International  (vol.  L,  Paris,  1887) ;  Ahren's  Nalurrecht  oder  Philo- 
sophie  des  Rechtes  (Wien,  1870) ;  Elements  du  Droit  International,  par  Henry 
Wheaton  (Leipzig,  1858) ;  Encyclopaedia  Britannica,  tit.  Grotius. 


JOHN    SELDEN 


JOHN  SELDEN1 

THE  stone  which  Ajax  or  Hector  hurls  with  ease  in  the  Iliad— 
d/ia|o7rX?7077 — "  scarce,"  says  Homer,  "  could  two  degenerate 
mortals  of  to-day  lift  it  "  ;  and  when  we  contemplate  the  achieve- 
ments of  a  man  like  Selden — scholar,  lawyer,  historian,  states- 
man, antiquarian — the  massy  folios  in  which  his  learning  is 
enshrined :  his  Titles  of  Honour,  his  Jews  in  England,  his 
Syrian  Gods,  his  History  of  Tithes,  to  say  nothing  of  his 
lesser  works — his  Jewish  Calendar,  his  Arundel  Marbles,  or 
the  Table  Talk,  in  which  wisdom  and  wit  sparkle  in  liveliest 
sallies — we  feel  that  here  is  a  true  Homeric  hero  of  the  seventeenth 
century — •"  one  of  the  giant  races  before  the  flood" — from  whom 
we  moderns  have  sadly  degenerated. 

Birthplace  and  Early  Years. — Selden's  father  was  a  yeoman 
farmer  with  a  small  estate  of  about  £40  a  year  at  Salvington, 
a  little  hamlet  half  a  mile  north  of  West  Tarring,  near  Worthing, 
Sussex  ;  but  there  ran,  in  his  veins,  as  in  Shakespeare's,  a  strain 
of  noble  blood,  derived  through  his  mother,  Margaret,  daughter 
and  sole  heiress  of  Sir  Thomas  Baker,  of  Rusington.  Here,  at 
Salvington,  Selden  was  born  in  1584.  Sussex  wit,  by  the  way, 
is  not  famous  ;  but  had  not  Boeotia  its  Hesiod  !  The  cottage 
where  he  first  saw  the  light  still  stands,  and  is  known  as  "  Lacies." 
It  bears  on  the  lintel  of  its  door  the  inscription,  said  to  have 
been  written  by  Selden  before  he  was  ten  years  old  : 

"  Gratus,  honeste,  mihi,  non  claudar ;  in  ito  sed  tu 
Fue  abeas  !  non  sum  facta  soluta  tibi." 

Which  may  be  rendered  thus  : 

"  Welcome,  thou  honest  man  ;  for  such  I  ne'er  will  closed  be  ; 
Enter  and  sit.     Thou,  thief,  begone  !  I  open  not  for  thee." 

Selden's  father,  Aubrey  tells  us,  took  great  delight  in  music, 
and  played  well  on  the  violin ;  "  and  at  Christmas  time,  to 
please  himself  and  his  neighbours,  he  would  play  to  them  as  they 

1  With  the  permission  of  the  proprietors  of  the  Law  Times  newspaper. 

185 


186  JOHN    SELDEN 

danced  "  — quite  a  Vicar  of  Wakefield  idyll.  At  one  of  these 
Christmas  entertainments,  Aubrey  goes  on  to  say,  Selden,  then 
a  young  student,  was  pointed  out  to  a  visitor — Lady  Cotton,  the 
wife  of  the  antiquary — as  a  youth  of  "  parts  extraordinary." 

We  talk  glibly,  in  these  days  of  education,  of  "  the  school- 
master being  abroad,"  and  if  "  instruction  ladled  out  in  a  hurry," 
as  Lord  Bowen  expressed  it,  is  education,  no  doubt  we  have  it. 
But  do  we  really  treat  the  matter  as  seriously  as  our  ancestors  ? 
Take  Selden's  case.  He  began  at  the  Free  Grammar  School  of 
Chichester,  founded  in  1497  by  Bishop  Stony.  From  there,  at 
the  age  of  sixteen,  he  went  to  Hart  Hall,  Oxford,  familiar  to  the 
older  generation  of  living  Oxford  men  as  Magdalen  Hall,  and 
to  the  younger  generation  as  Hertford  College.  Four  years 
were  spent  at  the  University,  and  he  then  commenced  his  legal 
career  at  Clifford's  Inn,  and  proceeded  in  due  course  to  an  Inn 
of  Court — the  Inner  Temple — where  he  spent  eight  years  more 
before  he  was  called  to  the  Bar — a  period  from  matriculation  to 
call  of  twelve  years.  And  now  we  are  contented  with — what  ? 
A  third  of  that  time. 

Selden's  chambers  were  at  Paper  Buildings,  overlooking  the 
gardens,  "the  uppermost  story,  where  he  had  a  little  gallery 
to  walk  in."  At  the  Bar  he  enjoyed  a  high  reputation  as  a  giver 
of  opinions,  and  was  called  in  in  cases  requiring  special  learning. 
But  a  large  legal  practice  was  not  the  sum  of  his  ambition,  nor 
was  he  contented  to  be  a  mere  lawyer.  "  The  proverbial  assertion 
that  Lady  Common  Law  must  lye  alone  never  wrought  with 
me,"  he  says.  Law  must  be  liberalized  by  literature. 

The  Society  of  Antiquaries — Ben  Jonson. — Cotton,  the  famous 
antiquary,  was  at  this  time  living  in  a  house  in  Westminster 
near  Old  Palace  Yard,  with  a  garden  leading  down  to  the  river — 
the  present  House  of  Lords  stands  on  a  part  of  it — and  had 
brought  together  there  a  magnificent  collection  of  manuscripts, 
coins,  marbles,  and  other  antiquities.  His  library  was  the 
chosen  meeting-place  of  all  the  scholars  of  the  country.  Cotton 
recognized  in  Selden  a  kindred  spirit,  and  not  only  made  him 
free  of  his  fine  library,  but  offered  him  the  hospitality  of  his 
house,  and  he  was  thus  introduced  to  the  society  of  a  choice 
circle  of  scholars,  antiquaries,  and  poets — Camden  and  Spelman, 
Sir  John  Davies,  Michael  Drayton,  and  Ben  Jonson. 

Ben  Jonson — himself  one  of  the  most  learned  men  in  an  age 
of  learned  men— was  a  great  admirer  of  Selden,  and  a  cordial 


JOHN    SELDEN  187 

friendship  subsisted  between  the  two.  Soon  after  James's  acces- 
sion, Ben  Jonson  and  Chapman,  of  Homeric  fame,  had  got  them- 
selves into  trouble  with  King  and  Court  by  some  satirical  jests 
at  the  expense  of  the  Scots  in  the  play  of  "  Eastward  Hoe." 
For  this  the  unlucky  dramatists  were  sent  to  prison,  and  a 
report  was  propagated  that  their  ears  and  noses  were  to  be  slit. 
They  were  released,  however,  without  being  subject  to  this 
indignity,  and  to  celebrate  their  deliverance  they  gave  an  enter- 
tainment to  Selden.  Jonson's  mother  was  present  on  the  occa- 
sion, and  at  the  feast  this  fine  old  lady  drank  to  her  son,  and 
showed  him  a  paper  which  she  designed,  she  said,  if  the  sentence 
had  taken  effect,  to  have  mixed  with  his  drink,  and  it  was  a 
strong  and  lusty  poison.  To  show  that  she  was  no  churl,  Jonson 
adds,  she  meant  to  have  first  drunk  of  it  herself. 

Living  Laborious  Days. — Under  the  stimulating  influence  of 
this  society  at  Cotton's  house,  Selden  was  soon  himself  an 
author,  and  bringing  forth  things  new  and  old  out  of  the 
treasury  of  his  unrivalled  erudition  :  now  a  controversy  with 
Grotius  on  the  Mare  Clausum  (see  p.  183)  ;  now  a  history 
of  the  early  inhabitants  of  Britain,  now  commendatory  verses 
to  Ben  Jonson's  play  of  "  Volone,"  now  a  study  of  the  Duello, 
or  trial  by  combat,  notes  on  Michael  Drayton's  wonderful 
poetical  itinerary  of  England  and  Wales,  known  as  the  "  Poly- 
olbion,"  a  discourse  touching  the  office  of  Lord  Chancellor,  or 
an  Introduction  to  Brown's  Pastorals.  Whatever  the  topic, 
his  versatile  pen  was  equally  ready  to  enrich  it  out  of  all  the 
stores  of  his  multifarious  learning.  And  these  were  but  Trapepya 
— in  comparison  of  his  more  solid  performances.  The  most 
interesting  of  them,  perhaps,  to  the  lawyer  is  his  monograph 
on  the  Judicial  Combat.  Here  he  describes  with  much 
learning  and  particularity  of  detail  how  the  combatants  stood 
opposed  to  one  another  in  the  lists  in  the  presence  of  the 
judges,  each  armed  with  a  horn-tipped  bastion  and  a  quad- 
rangular shield ;  how  each  in  turn  takes  the  other  by  the  hand 
and  delivers  his  challenge,  and  how  they  fight  till  one  cries 
craven  or  a  star  comes  out.  Selden  was  far  from  superstitious  ; 
yet  it  is  curious  to  remark  how  the  old  idea  of  the  propriety 
of  an  appeal  to  Heaven  clings  to  him — the  idea  that  God  will 
defend  the  right.  "War  is  lawful,"  he  says  in  his  Table  Talk, 
"  because  God  is  the  only  judge  between  two  that  are  supreme. 
Now,  if  a  difference  happen  between  two  subjects,  and  it  cannot 


188  JOHN    SELDBN 

be  decided  by  human  testimony,  why  may  they  not  put  it  to 
God  to  judge  between  them,  by  the  permission  of  the  Prince  ?" 
"Titles of  Honour,"  "Tithes." — In  161 4  appeared  his  Titles  of 
Honour,  the  book  with  which — next  to  his  Table  Talk — his 
name  is  most  associated.  The  history  of  titles,  like  those  of 
King  and  Cardinal,  Caesar  and  Cham,  Duke  and  Count,  Landgrave 
and  Margrave,  Baron  and  Knight ;  of  the  rotes  and  insignia 
appropriate  to  each,  of  the  ceremonies  of  investiture,  and  so 
on,  gave  unlimited  scope  to  his  learning,  and  have  made  the 
book  ever  since  a  quarry  for  the  antiquarian  and  student  of 
heraldry.  His  friend  Ben  Jonson,  saluting  the  author  on  its 
appearance,  thus  apostrophizes  him  in  a  poetical  epistle  : 

"  You  that  have  been 
Ever  at  home,  yet  have  all  countries  seen  : 
Which  grace  shall  I  make  love  to  first  ?     Your  skill, 
Or  faith  in  things  ?     Or  is  't  your  wealth  and  will 
T'  inform  and  teach  ?     Or  your  unwearied  pain 
Of  gathering  ?     Bounty  in  pouring  out  again  ? 
What  fables  have  you  vexed  ?     What  truth  redeemed  ? 
Antiquities  searched,  opinions  disesteemed, 
Impostures  branded,  and  authorities  urged  ?" 

In  1616  came  his  valuable  Commentary  on  Chief  Justice  Fortes- 
cue's  Leges  Anglice ;  the  following  year  his  De  Deis  Syrice — the 
Golden  Calf,  Apis,  Baal,  Moloch,  Astarte,  Astaroth — and  Ms 
Marriage  and  Divorce  among  the  Jews — Uxor  Ebraica — both  full 
of  Oriental  learning,  and  that  not  borrowed,  but  the  fruit  of 
original  research.  Then  came  his  History  of  Tithes,  in  which  he 
maintained  that  tithes  were  not  jure  divino,  and  so  brought 
himself  into  great  odium  with  the  clergy.  King  James  sent 
for  him  to  bring  his  book  to  Theobalds,  and  Archbishop  Laud 
forced  him  to  write  a  sort  of  recantation  of  his  opinions  —  a 
recantation  which  reminds  us  of  Galileo's  abjuration  of  his 
heresy  that  the  earth  goes  round  the  sun. 

Never  in  the  whole  history  of  letters  was  such  prodigious 
literary  activity  crowded  into  so  brief  a  span  as  into  the  ten 
years  of  Selden's  life  from  his  twenty-sixth  to  his  thirty-sixth 
year.  The  contemplation  of  it  in  the  great  folios  of  Wilkin's 
edition  simply  staggers  the  beholder.  How  he  accomplished 
it  is  a  mystery.  Partly,  no  doubt,  by  economy  of  time.  He 
would  have  said,  with  the  founders  of  the  Middle  Temple  Library, 
k  Nulla  jactura  gravior  temporis."  Even  when  under  the  hands 
of  the  barber,  if  a  notion  came  into  his  head  he  would  write  it 
down  to  preserve  it.  Once,  when  Isaac  Vossius,  the  great 


JOHN    SELDEN  189 

scholar  of  Leyden,  came  to  see  him  while  he  was  busy,  he  called 
out  from  the  top  of  the  staircase  that  he  had  no  time  to  waste 
in  idle  talk. 

"  Above  all  things  Freedom" — Political  Life. — An  interesting 
article  might  be  written  on  the  keynotes  of  great  lives.  The 
keynote  of  Selden's  was  his  love  of  freedom.  His  chosen  motto, 
repeated  in  all  his  books,  is  irepi  Trdvr&v  TTJV  e\fn0epicn.  But 
it  was  a — 

"  Love  of  freedom  rarely  felt ; 
Of  Freedom  in  her  regal  seat, 
Of  England — not  the  schoolboy  heat, 
The  wild  hysterics  of  the  Kelt." 

It  was  this  which  drew  him  —  by  nature  a  student  and  a 
recluse — into  the  arena  of  political  strife,  and  which  made  him 
a  foe  to  tyranny  in  any  form,  whether  it  was  the  tyranny  of  the 
King  or  of  the  Parliamentary  party.  It  was  a  stirring  time — 
perhaps  the  most  stirring  in  all  our  constitutional  annals.  The 
theories  of  prerogative  and  of  divine  right,  which  with  King 
James  had  been  speculative  political  tenets,  had  with  Charles 
become  active  principles  of  government.  In  the  struggle  that 
ensued  Selden  was  one  of  the  protagonists  of  the  Parliamentary 
party.  It  was  he  who,  with  Coke,  drafted  in  1628  the  Petition 
of  Right,  the  new  charter  of  our  national  liberties.  It  was  he, 
too,  who  figured  most  conspicuously  in  the  memorable  scene 
which  took  place  a  year  later  in  the  debate  on  tonnage  and 
poundage.  The  goods  of  a  member — one  Rolle — had  been  seized 
for  non-payment  of  the  tax,  and  the  House  protested  against 
the  seizure  not  only  as  illegal  but  a  breach  of  privilege.  The 
Speaker  tried  to  evade  the  situation  by  refusing  to  put  the  ques- 
tion. Then  said  Mr.  Selden  :  "  Dare  not  you,  Mr.  Speaker,  put 
the  question  when  we  command  you  ?  If  you  will  not  put  it, 
we  must  sit  still ;  thus  we  shall  never  be  able  to  do  anything. 
They  that  come  after  you  may  say :  '  They  have  the  King's 
commandment  not  to  do  it.'  We  sit  here  by  the  command  of 
the  King  under  the  Great  Seal,  and  you  are  by  His  Majesty 
sitting  in  this  royal  cha^r  before  both  Houses,  appointed  for  our 
Speaker,  and  now  you  refuse  to  perform  your  office."  The 
Speaker  replied,  "  I  have  a  command  from  the  King  to  adjourn 
till  March  10,  and  put  no  question,"  and  endeavoured  to  go 
out  of  the  chair,  but  was  held  there  by  two  strong  young  members, 
Holies  and  Valentine,  till  a  protestation  had  been  published 
in  the  House  (1)  against  Popery  and  Arminianism.  and 


190  JOHN    SELDEN 

(2)  against  Tonnage  and  Poundage.  For  his  share  in  this 
"  notable  contempt,"  as  Charles  called  it,  "  against  ourself  and 
our  Government,  and  for  stirring  up  sedition  against  us,"  Selden, 
with  some  others,  was  sent  to  the  Tower,  thence  to  the  Marshalsea, 
and  finally  to  the  Gatehouse,  Westminster.  He  was  not  liberated 
until  May,  1631. 

"  Not  Leaning  to  this  Faction  or  to  that." — Such  treatment 
might  have  bred  lasting  resentment  in  a  mind  less  well  balanced 
than  that  of  Selden,  but,  so  far  from  its  doing  so,  we  find  him 
two  years  later  one  of  the  Committee  of  the  Inner  Temple  for 
organizing  a  grand  masque  given  by  the  Four  Inns  of  Court 
to  testify  their  loyalty  to  the  King  and  their  disgust  at  the 
virulence  and  indecency  of  Prynne's  Histriomastix,  and  the 
same  year  he  is  dedicating  his  Mare  Clausum  on  the  Rules  of  the 
Sea  to  Charles  ("regi  serenissimo  et  potentissimo"),  subscribing 
himself  as  his  "  humble  and  most  devoted  subject."  But  let 
no  one  suppose  that  Selden  was  a  time-server  because  he  steered 
a  middle  course  between  the  contending  factions.  Like  a  wise 
man,  he  hated  the  "  falsehood  of  extremes,"  whether  in  State 
or  Church.  Since  Laud's  treatment  of  him  for  his  Tithes  he 
was  no  friend  to  the  Bishops,  but  he  liked  as  little  the  fanaticism 
of  the  Presbyterian  party.  He  was  a  member  of  the  Assembly 
of  Divines  at  Westminster  in  1643,  and  utterly  routed  them  with 
his  Hebrew,  Greek,  and  antiquities.  When  they  cited  their 
texts,  he  would  say  :  "  Perhaps  in  your  little  pocket  Bibles 
with  gilt  leaves  "  (which  they  would  often  pull  out  and  read) 
"it  may  be  thus,  but  the  Greek  or  the  Hebrew  signifies  thus 
and  thus,"  and  he  would  totally  silence  them.  There  could 
be  no  better  testimony  to  his  moderation  than  the  fact  that 
Charles  thought  of  making  him  his  Chancellor,  and  would 
have  done  so  had  he  not  been  persuaded  by  Lord  Falkland,  who 
knew  that  Selden  would  not  for  personal  reasons  accept  the 
office.  "  He  was  in  years,"  says  Clarendon,  "  and  of  a  tender 
constitution.  He  had  for  many  years  enjoyed  his  ease  which 
he  loved ;  was  rich,  and  would  not  have  made  a  journey 
to  York  or  have  lain  out  of  his  own  bed  for  any  preferment." 
"  In  person  Selden  was,"  says  Aubrey,  "  very  tall — I  guess 
about  six  feet  high ;  long  nose  inclining  to  one  side ;  full 
grey  eye." 

Ho  had  for  a  long  time  been  steward  to  the  Earl  of  Kent, 
and  after  the  Earl's  death  he  continued  to  reside  with  the 


JOHN    SELDEN  191 

Countess  in  her  noble  mansion  at  Whitefriars.  "  He  never  kept 
any  servant  peculiar,  but  my  ladie's  were  all  at  his  command." 
Aubrey  says  he  was  privately  married  to  the  Countess,  but  this 
is  doubtful.  If  he  were,  it  would  be  only  a  mariage  de  con- 
venance,  for  Selden  was  no  Mend  to  the  fair  sex.  He  calls 
marriage  a  "  desperate  thing."  "  The  frogs  in  JSsop,"  he  says, 
"were  extreme  wise.  They  had  a  great  mind  to  some  water, 
but  they  would  not  leap  into  the  well  because  they  could  not 
get  out  again."  With  a  blooming  and  ardent  young  wife  Selden 
would  probably  have  been  as  uncomfortable  as  the  learned 
Mr.  Casaubon  was  with  Dorothea  in  Middlemarch. 

But  Selden  was  no  killjoy.  "  He  kept  a  plentiful  table,  and 
was  never  without  learned  company."  He  died — of  a  dropsy — 
in  1654,  and  was  magnificently  buried  in  the  Temple  Church.  At 
his  death  he  left  a  very  valuable  library,  and  his  executors — of 
whom  Sir  Matthew  Hale  was  one — offered  it  to  the  Society  of 
Lincoln's  Inn.  The  Society,  on  its  part,  was  very  anxious  to 
acquire  it  (see  2  Black  Books,  407-410).  But  a  difficulty  arose 
about  the  terms — making  the  library  a  "  publick  library  for  the 
other  Inns  of  Court  " — and  in  the  end  the  library  went,  much  to 
the  disappointment  of  the  Bench,  to  the  Bodleian. 

Lord  Clarendon's  Sketch. — Selden's  portrait  has  been  drawn 
for  us  by  a  master  hand — that  of  Lord  Clarendon.  "  He  was  a 
person,"  says  the  historian  of  the  Civil  War,  "  whom  no  character 
can  flatter  or  transmit  any  expressions  equal  to  his  merit  and 
virtue.  He  was  of  so  stupendous  a  learning  in  all  kinds  and  in 
all  languages — as  may  appear  in  his  excellent  writings — that  a 
man  would  have  thought  he  had  been  entirely  conversant  among 
books,  and  had  never  spent  an  hour  but  in  reading  and  writing  ; 
yet  his  humanity,  affability,  and  courtesy  were  such  that  he  would 
have  been  thought  to  have  been  bred  in  the  best  Courts,  but  that 
his  good-nature,  charity,  and  delight  in  doing  good  exceeded  that 
breeding.  His  style  in  all  his  writings  seems  harsh  and  sometimes 
obscure,  which  is  not  wholly  to  be  imputed  to  the  abstruse  subjects 
of  which  he  commonly  treated  out  of  the  paths  trod  by  other 
men,  but  to  a  little  undervaluing  the  beauty  of  style  and  too 
much  propensity  to  the  language  of  antiquity  ;  but  in  his  con- 
versation he  was  the  most  clear  discourser,  and  had  the  best 
faculty  of  making  hard  things  easy,  and  presenting  them  to  the 
understanding  that  hath  been  known."  Milton  calls  him  the 
"  chief  of  learned  men  and  glory  of  our  nation." 


192  JOHN    SELDEN 

The  "  Table  Talk." — It  is  often  the  light  trifles  which  float  down 
the  stream  of  time,  while  the  more  solid  things  disappear.  It 
has  been  so  with  Selden.  The  memory  of  his  antiquarian  and 
legal  researches — preluding  the  historic  method — has  been  per- 
petuated and  honoured  in  the  name  of  the  Selden  Society,  but 
the  works  themselves — those  vast  tomes  of  obscure  learning 
which  would  have  called  forth  many  a  "  Prodigious !"  from 
Dominie  Sampson — finds  few  readers.  The  Table  Talk  still  lives 
and  is  popular.  The  very  title  Table  Talk  has  a  charm,  whether 
it  is  the  table  talk  of  a  Luther,  a  Rogers,  a  Coleridge,  a  Johnson, 
or  a  Selden.  Here  we  have  the  saint,  the  sage,  or  the  scholar 
expanding  under  the  genial  influences  of  the  table,  mingling  wit 
with  wisdom,  and  descending  for  a  time  from  the  heights  to 
illuminate  for  an  "  ordinary  apprehension " — as  R.  Milward, 
Selden's  Boswell,  expresses  it — "  the  highest  points  of  religion 
and  the  most  important  affairs  of  State."  For  the  reader  must 
not  look  to  find  in  Selden  "  an  agreeable  rattle."  It  was  still  the 
custom  in  colleges  and  monasteries — dreadful  as  it  may  seem  to  a 
dyspeptic  generation — to  propound  after  dinner  some  deep  and 
difficult  thesis  for  debate,  and  in  Selden's  age  many  such  grave 
problems  were  pressing  for  solution.  Hence  his  Table  Talk, 
though  quite  free  from  pedantry,  consists  rather  "  weighty  bullion 
sense  " — to  use  Coleridge's  phrase — than  of  smart  epigram  or 
racy  anecdote.  One  would  say  that  the  great  lawyer  was  shrewd 
rather  than  witty.  Yet  there  is  at  times  a  flavour  of  humour  about 
him,  as,  for  instance,  in  the  "  logic  "  which  the  boy  who  would 
have  married  his  grandmother  used  to  his  father  :  "  You  married 
my  mother.  Why  should  I  not  marry  yours?"  Or,  again,  in  this: — 

Becking  to  the  De'il. — "  Speak  not  ill  of  a  great  enemy,  but 
rather  give  him  good  words,  that  he  may  use  you  the  better  if 
you  chance  to  fall  into  his  hands."  The  Spaniard  did  this  when 
he  was  dying.  His  confessor  told  him,  to  work  him  to  repent- 
ance, how  the  Devil  tormented  the  wicked  that  went  to  Hell. 
The  Spaniard  replying  called  the  Devil  "  My  Lord  "— "  I  hope 
my  Lord  the  Devil  is  not  so  cruel."  His  confessor  reproved  him. 
"  Excuse  me,"  said  the  Don,  "  for  calling  him  so  ;  I  know  not  into 
what  hands  I  may  fall,  and  if  I  happen  into  his,  I  hope  he  will 
use  me  the  better  for  giving  him  good  words."  It  was  much  the 
same  feeling  as  inspired  the  auld  wife  when  she  "  beckit  "  (curt- 
sied) to  the  Deevil.  "  It's  aye  gude  to  be  ceevil,"  she  said. 

We  are  much  struck  by  the  boldness  of  many  of  his  remarks, 


JOHN   SELDEN  193 

especially  in  the  matter  of  religion — a  boldness  exemplifying  his 
favourite  motto — irepl  irdvTwv  rtfv  e\€v0epiav.  "  It  is  a  vain 
thing,"  he  says,  "  to  talk  of  a  heretic,  for  a  man  from  his  heart  can 
think  no  otherwise  than  he  does  think  " — a  sentiment  which 
reminds  us  of  Sir  Thomas  More's  reason  for  one  of  the  oldest  laws 
of  the  Utopians — that  no  man  ought  to  be  punished  for  his 
religion — •"  Because  a  man  cannot  make  himself  believe  anything 
he  pleases."  "Religion,"  he  goes  on,  "is  like  the  fashion  :  one 
man  wears  his  doublet  slashed,  another  laced,  another  plain,  but 
every  man  has  a  doublet.  So  every  man  has  his  religion.  We 
differ  about  trimming."  Selden's  age,  it  must  be  remembered, 
was  fertile  of  "fancy  religions."  Conduct — the  influence  of  re- 
ligion on  the  life — was  what  reckoned  with  him.  "What  care 
I,"  says  he,  "  to  see  a  man  run  after  a  sermon  if  he  cozens  and 
cheats  as  soon  as  he  comes  home  ?"  How  true  it  is,  as  he  says, 
that  "  Humility  is  a  virtue  which  all  preach  and  none  practise  "  ! 
"  Equity  "  Selden  calls  "  a  roguish  thing."  "  For  law,"  he  says, 
"we  have  a  measure,  and  know  what  we  have  to  trust  to. 
Equity  is  according  to  the  conscience  of  him  that  is  Chancellor, 
and  as  that  is  larger  or  narrower,  so  is  equity."  In  weighing  this 
dictum  we  must  remember  that  at  the  tune  it  was  uttered  equity 
had  not  been  reduced  to  a  system — a  "  laboured  connected  system 
governed  by  fixed  rules,  and  bound  down  by  precedent  " — such 
as  it  became  under  the  moulding  genius  of  Lord  Hardwicke  and 
Lord  Eldon.  Here,  as  elsewhere,  the  advice  of  his  Boswell  is 
good.  "  Be  pleased,"  he  says,  "  in  reading  to  distinguish  times, 
and  in  your  fancy  carry  along  with  you  the  when  and  the  why 
many  of  these  things  were  spoken.  This  will  give  them  the  more 
life  and  the  smarter  relish." 

"Salus  Populi."  Is  it  a  Shoe? — Apropos  of  the  maxim 
Salus  populi  supremo,  lex,  Selden  makes  an  acute  observation.  The 
true  reading  is  Suprema  lex  esto,  not  est.  In  other  words,  the 
Twelve  Tables  mean,  not  that  the  solus  populi  is  to  overrule  exist- 
ing law,  but  that  it  is  to  be  the  spirit  or  principle  animating  all 
law  and  legislation.  In  the  maxim  Ignorantia  juris  neminem 
excusat  he  sensibly  remarks  that  its  justification  is,  "  not  that  all 
men  know  the  law,  but  because  'tis  an  excuse  every  man  will 
plead,  and  no  man  can  tell  how  to  confute  him."  Charles  II. 
once  puzzled  the  wiseacres  of  the  Royal  Society  by  propounding 
to  them  the  question  why  a  bowl  with  goldfish  in  it  was  lighter 
than  one  without ;  for  which  they  adduced  many  excellent 

14 


194  JOHN   SELDEN 

reasons,  till  told  that  the  fact  was  not  so.  "We  commonly," 
says  Selden,  "  are  at  what  is  the  reason  before  we  are  sure  of  the 
real  thing.  'Twas  an  excellent  question  of  my  lady  Cotton, 
when  Sir  Robert  Cotton  was  magnifying  of  a  shoe,  which  was 
Moses'  or  Noah's,  and  wondering  at  the  strange  shape  and 
fashion  of  it.  'But,  Mr.  Cotton,'  says  she,  'are  you  sure  it 
is  a  shoe  ?'  " 


THOMAS    HOBBES 


THOMAS  HOBBES 

THOMAS  HOBBES  was  born  in  1588,  the  second  son  of  the  Vicar  of 
Charlton  and  Westport  in  Wiltshire.  He  was  sent  to  school  in 
Westport  Church  at  the  age  of  four,  and  "  at  the  age  of  six  was 
learning  Latin  and  Greek."  This  stern  beginning  was  not  relaxed, 
and  early  in  1602-3  the  boy  was  entered  at  Magdalen  Hall, 
Oxford.  To  some  extent  certainly  he  was  influenced  by  the 
Puritanism  of  his  college,  and  we  know  that  he  was  repelled  by 
the  medieval  scholasticism  that  still  permeated. the  atmosphere 
of  Oxford.  He  took  his  bachelor's  degree  at  the  end  of  1607 
and  became  the  tutor  and  friend  of  William  Cavendish,  after- 
wards second  Earl  of  Devonshire.  For  twenty  years  he  re- 
mained with  his  patron,  and  in  1631  he  became  tutor  to  the 
eldest  son  of  his  first  pupil.  This  involved  a  further  foreign 
tour,  from  which  he  returned  in  1637.  In  the  course  of  his  long 
Continental  journeys  he  had  become  acquainted  with  many  of 
the  thinkers  of  that  age,  including  Galileo  and  Descartes.  At 
some  time  he  was  on  ultimate  terms  with  Francis  Bacon,  though 
at  what  date  before  1626  is  not  clear.  "Hobbes,"  says  Mr. 
Leslie  Stephen,  "  according  to  Aubrey,  wrote  from  Bacon's 
dictation,  showing,  as  may  be  believed,  more  intelligence  than 
other  amanuenses,  and  helped  in  turning  some  of  the  essays  into 
Latin.  Hobbes,  however,  makes  very  slight  reference  to  Bacon, 
and  does  not  seem  to  have  been  directly  influenced  by  his  philo- 
sophy."1 It  is,  however,  most  probable  that  his  legal  ideas  were 
affected  by  the  views  of  the  great  Chancellor,  and  it  may  be 
possible  to  trace  some  juridical  unity  of  thought. 

Social  Philosophy. — It  was  not  until  after  1637  that  Hobbes 
began  to  produce  in  systematic  fashion  his  scheme  of  philosophy, 
though  he  had  for  some  years  been  gradually  developing  his  philo- 
sophic position.  In  1640  he  completed  his  treatise  on  The  Elements 
of  Law,  Natural  and  Politique,  published  some  ten  years  later  in 

1  He  certainly  inherited  Bacon's  contempt  for  (Joke. 
195 


196  THOMAS  HOBBES 

two  parts,  "  Human  Nature,  or  The  Fundamental  Elements  of 
Policy,"  and  "  De  Corpore  Politico,  or  Elements  of  Law,  Moral 
and  Politic."  In  1641  he  finished  his  treatise  De  Give  containing 
his  theories  on  politics  and  religion.  This  was  published  in  1642 
and  again  hi  1647,  and  an  English  version  was  issued  some  years 
later.  Meantime  Hobbes  was  out  of  England.  He  had  fled  in 
November,  1640,  from  what  seemed  to  be  the  wrath  to  come  and 
settled  in  Paris.  Here  he  remained  eleven  years  and  here  he 
composed  his  immortal  work  the  Leviathan.  This  was  sent  to 
London  for  publication  and  appeared  in  1651.  Hobbes  was 
accused  of  supporting  hi  this  work  Cromwell  and  the  results  of 
the  Great  Revolution,  but  of  this  charge  he  is  wholly  free.1  It  is 
true  that  he  compounded  with  the  Republic  in  1651,  but  so  did 
far  more  eminent  cavaliers .  In  1 655  he  was  at  last  able  to  publish 
his  preliminary  philosophical  work  the  De  Corpore,  a  volume 
"  containing  his  first  principles,  as  well  as  his  mathematical  and 
physical  doctrines."  The  complete  volume,  De  Homine,  on 
psychology,  never  appeared,  though  a  work  with  that  title  of 
little  original  value  appeared  in  1658.  At  this  time  Hobbes  was 
largely  wasting  his  tune  in  fruitless,  and  indeed  disastrous,  con- 
flicts with  the  Royal  Society  group  of  thinkers.  He  was  not  a 
mathematician,  and  in  his  former  conflicts  with  Descartes  had 
been  as  little  successful  as  he  was  between  1660  and  1666  in  his 
ridiculous  battles  with  John  Wallis,  the  Savilian  professor  of 
geometry.  He  lived  on,  working  to  the  last,  under  the  protection 
of  the  Cavendish  family  until  his  death  on  December  4,  1679,  in 
his  ninety-second  year.  In  his  later  period  his  fame  had  increased 
and  he  was  both  idolized  and  attacked  at  home  and  abroad. 
To  certain  classes  Hobbism  became  a  species  of  sin,  and  as  late  as 
1 734  "he  was  reviled  on  all  sides  as  the  typical  atheist,  materialist, 
political  absolutist,  and  preacher  of  ethical  selfishness."  But 
his  acuteness  and  his  pungency  of  mind  and  the  brilliancy  of  his 
philosophic  thought  could  no  longer  be  in  doubt  when  the 
peculiar  bitterness  aroused  by  his  controversial  manner  and 
the  novelty  of  his  attack  had  died  away.  He  set  England 
thinking. 

"Hobbes  [says Mr.  Stephen  in  his  valuable  biographical  notice2 
already  referred  to]  produced  a  fermentation  in  English  thought 
not  surpassed  until  the  advent  of  Darwinism.  .  .  .  Hobbes  was 

There  is  evidence  enough  of  this  in  Tfie  Dialogue  of  the  Common  Laws, 
2  Dictionary  of  National  Biography,  vol.  xxvii. 


THOMAS  HOBBES  197 

in  truth  a  product  of  the  great  intellectual  movement  distin- 
guished by  such  names  as  Bacon  (1561-1629),  Galileo  (1564- 
1642),  Kepler  (1571-1630),  Harvey  (1578-1657),  and  Descartes 
(1596-1650).  .  .  .  He  shared  in  the  general  repudiation  of 
scholasticism.  In  his  so-called  Philosophic*  Prima  he  touched 
hastily  upon  first  principles,  but  failed  to  recognize  the  significance 
of  the  ultimate  problems  the  answer  to  which  by  Descartes 
founded  modern  philosophy.  His  thorough-going  nominalism 
is  his  most  remarkable  characteristic.  At  the  same  time  he  was 
scarcely  influenced  by  Bacon's  theory  of  the  importance  of 
systematic  induction  and  experiment.  He  conceived  of  a  general 
scientific  scheme  of  universal  knowledge,  deducible  by  geometrical 
methods  from  the  motions  of  matter  which  he  assumed  to  be 
the  ultimate  fact.  The  conception  recalls  in  some  respects  that 
of  Mr.  Herbert  Spencer.  .  .  .  His  great  achievement,  however, 
is  his  political  philosophy,  especially  as  given  in  the  Leviathan. 
It  was  the  edifice  under  which  he  endeavoured  afterwards  to 
introduce  the  foundation  of  philosophy,  doubtless  congenial, 
but  not  the  real  groundwork  of  his  doctrine.  Like  all  the  great 
thinkers  of  his  time,  he  had  been  profoundly  impressed  by  the 
evils  caused  by  the  sectarian  animosities  of  the  time.  His 
remedy  was  the  entire  subordination  of  the  ecclesiastical  to  the 
secular  authority — a  theory  which  made  the  religion  of  a  state 
dependent  upon  its  secular  sovereign,  and  therefore  not  derivable 
either  from  churches  or  philosophers,  and  shocked  equally  the 
rationalists  and  the  orthodox.  ...  In  support  of  his  absolutism 
he  interprets  the  doctrine  of  the  social  contract  (which  had  been 
recently  expounded  by  Hooker  and  Grotius)  not  as  a  compact 
between  the  sovereign  and  his  subjects,  but  as  between  the 
subjects  to  obey  the  sovereign.  Virtually  he  argues  that  states 
have  been  formed  as  the  only  alternative  to  the  state  of  nature, 
or,  on  his  showing,  to  anarchy  and  barbarism.  The  supremacy 
and  unity  of  the  sovereign  power  is  therefore  an  expression  of 
the  essential  condition  of  civilized  life.  To  this,  though  with 
some  reserves,  he  subordinates  even  the  moral  law  ;  and  his 
characteristic  theory  of  human  selfishness  reduces  the  only 
sanction  to  fear  of  force  or  each  man's  hopes  of  personal  advan- 
tage." 

This  last  statement  is  somewhat  misleading,  as  Hobbes 
includes  under  the  idea  of  force  the  control  exercised  by  the 
Supreme  Being,  and  reduces  all  authority  to  a  Divine  source. 

The  Laws  of  Nature. — The  laws  of  nature  according  to  Hobbes 
are  precepts  or  general  rules  "found  out  by  reason,  by  which  a  man 
is  forbidden  to  do  that,  which  is  destructive  of  his  life,  or  taketh 
away  the  means  of  preserving  the  same  ;  and  to  omit  that,  by 


198  THOMAS  HOBBES 

which  he  thinketh  it  may  be  preserved."  This  is  not,  he  tells  us, 
to  be  confused  with  "  the  right  of  nature  "  (jus  naturale)  which  is 
"  the  liberty  each  man  hath,  to  use  his  own  power,  as  he  will 
himself,  for  the  preservation  of  his  own  nature  ;  that  is  to  say,  of 
his  own  life  ;  and  consequently  of  doing  anything,  which  in  his 
own  judgment,  and  reason,  he  shall  conceive  to  be  the  aptest 
means  thereunto." 1  These  laws  and  rights  are  not  to  be  confused 
with  the  laws  and  rights  arising  therefrom  which  have  what  I 
may  call  a  municipal  origin.  Hobbes  forestalled  Austin  in 
defining  law  as  "  the  command  of  him  or  them  that  have  coercive 
power."2  It  is  hi  reference  to  law  so  defined  that  we  are  told 
that  "  The  desires,  and  other  passions  of  man,  are  in  themselves 
no  sin.  No  more  are  the  actions,  that  proceed  from  those 
passions,  till  they  know  a  law  that  forbids  them  :  which  till  laws 
be  made  they  cannot  know,  nor  can  any  law  be  made,  till  they 
have  agreed  upon  the  person  that  shall  make  it."3  In  this 
passage  Hobbes  seems  to  take  from  his  own  conception  of  natural 
law  and  natural  rights  all  sanction,  but  he  probably,  or  indeed 
certainly,  does  not  intend  this.  His  doctrine  of  an  original  or 
primeval  "  state  of  war  "  among  men  no  doubt  implies  an  irre- 
sponsible sinlessness  before  the  advent  of  municipal  authority. 
Moreover,  since  the  laws  of  nature  are  "  found  out  by  reason," 
Hobbes  probably  assumed  that  these  laws  were  still  in  nubihus 
during  the  period  of  primeval  human  chaos.  Unwitting  neglect 
of  the  laws  of  nature  may  be  taken,  as  a  result  of  the  consequences 
of  neglect,  to  have  led  to  their  instinctive  appreciation  and  their 
ultimate  formulation.  This  becomes  clear — of  course  I  am 
assuming  for  the  moment  the  Hobbesian  process  of  evolution — 
when  we  consider  the  laws  that  Hobbes  enunciates.  The  "  first, 
and  fundamental  law  of  Nature  "  is  "  to  seek  peace,  and  follow 
it."  This  is  supplemented  by  what  he  calls  "the  sum  of  the 
right  of  nature  " — namely,  "  by  all  means  we  can,  to  defend 
ourselves." 

The  original  "  state  of  war  "  gave  to  every  one  the  right  to 
everything.  The  first  law  of  nature  modifies  that  right  by 
implication.  The  exact  modification  is  contained  in  the  second 
law.  which  runs  as  follows  :  "  That  a  man  be  willing,  when  others 

1  Lemathan,  Part  I.,  cap.  xiv. 

2  Computation  or  Logic,  cap.  v.  (Sir  William  Molesworth's  edition  of  the 
works,  vol.  i.,p.  74.     This  edition  is  quoted  throughout  this  article).     See 
also  DC  Cor  pore  Politico  and  A  Dialogue  of  the  Common  Laws. 

3  Leviathan,  Part  I.,  cap.  xiii.  (vol.  hi.,  p.  114). 


THOMAS  HOBBES  199 

are  so  too,  as  far-forth,  as  for  peace,  and  defence  of  himself  he 
shall  think  it  necessary,  to  lay  down  this  right  to  all  things  ;  and 
be  contented  with  so  much  liberty  against  other  men,  as  he 
would  allow  other  men  against  himself."  The  right  given  up  is 
the  right  of  hindering  another's  natural  rights.1  This  is  done  in 
consideration  of  some  right  reciprocally  transferred  to  the  man 
who  has  transferred  his  right.  "  The  mutual  transferring  of  right, 
is  that  which  men  call  CONTRACT."  Where  there  is  no  mutuality 
the  transfer  of  a  right  is  a  gift.  When  we  reach  this  stage  of 
"natural  law"  the  existence  of  some  definite  coercive  force 
becomes  necessary,  for  where  any  part  of  a  contract  remains  to 
be  performed,  there  remains  what  Hobbes  calls  a  "  pact "  or 
"  covenant,"  and  this  has  no  reality  unless  it  is  enforceable. 

"  If  a  covenant  be  made,  wherein  neither  of  the  parties  perform 
presently,  but  trust  one  another  ;  in  the  condition  of  mere  nature, 
which  is  a  condition  of  war  of  every  man  against  every  man  upon 
any  reasonable  suspicion,  it  is  void  :  but  if  there  be  a  common 
power  set  over  them  both,  with  right  and  force  sufficient  to 
compel  performance,  it  is  not  void." 

The  coercive  force,  however,  need  not  necessarily  be  a  muni- 
cipal force.  All  that  is  necessary  is  a  force  that  will  bind  men 
to  the  performance  of  their  covenants.  "The  passion  to  be 
reckoned  upon  is  fear  ;  whereof  there  be  two  very  general  objects  : 
one,  the  power  of  spirits  invisible  ;  the  other,  the  power  of  those 
men  they  shall  therein  offend.  Of  these  two,  though  the  former 
be  the  greater  power,  yet  the  fear  of  the  latter  is  commonly  the 
greater  fear.  The  fear  of  the  former  is  in  every  man,  his  own 
religion  :  which  hath  place  in  the  nature  of  man  before  civil 
society." 

This  last  is  a  very  significant  sentence,  for  it  refers  back  the 
true  binding  powers  of  the  "  laws  of  nature  "  to  a  religious  and 
external  power.  Hobbes  declares  that  a  covenant  between  two 
men  not  subject  to  civil  power  is  concluded  by  each  party 
swearing  by  the  God  that  he  feareth;  but  adds  :  "  it  appears  also, 
that  the  oath  adds  nothing  to  the  obligation.  For  a  covenant, 
if  lawful,  binds  in  the  sight  of  God,  without  the  oath." 

If  we  turn  to  the  essay  on  Liberty2  we  find  the  laws  of  nature 

1  We  may  compare  this  statement  with  the  definition  of  right  in  Dante's 
De  Monarchia.     "  The  real  and  personal  proportion  of  man  to  man,  which, 
when  preserved,  preserves  human  society,  and  when  infringed,  infringes  it 
(Mr.  Wicksteed's  translation).     Dante  refers  to  the  Digests:    Jits  e-st  ars 
bonietcequi.  2  Vol.  ii.,  p.  16. 


£00  THOMAS  HOBBES 

there  described  as  the  "  dictate  of  right  reason."  Hobbes  warns 
the  reader  that  "  all  authors  agree  not  concerning  the  definition 
of  the  natural  laiv,  who  notwithstanding,  do  very  often  make  use 
of  this  term  in  their  writings."  This  want  of  unanimity  has  not 
disappeared  in  the  two  centuries  and  more  that  have  passed 
since  the  death  of  the  philosopher. 

Hobbes  was  sufficiently  frugal  in  his  output  of  juridical  thought. 
This  essay  on  Liberty  contains  in  the  second  and  third  chapters 
practically  a  transcript  of  the  chapters  in  the  Leviathan,  dealing 
with  the  laws  of  nature.1  The  law  of  nature  is  defined  as  "  the 
dictate  of  right  reason  "  and  then  the  first  and  fundamental  law 
of  nature  is  stated  as  follows  :  "  That  peace  is  to  be  sought  after, 
where  it  may  be  found  ;  and  where  not,  there  to  provide  ourselves 
for  helps  of  war."  From  this  is  derived  "  the  first  special  law  " 
corresponding  to  the  second  law  of  nature  given  above.  Thus 
the  "  first  special  "  law  runs  as  follows  :  "  That  the  right  of  all 
men  to  all  things  ought  not  to  be  retained  ;  but  that  some  certain 
rights  ought  to  be  transferred  or  relinquished." 

The  third  chapter  of  the  essay  on  Liberty,  entitled  "  Of  the 
other  Laws  of  Nature,"  follows  the  fifteenth  chapter  of  the  first 
part  of  the  Leviathan.  The  second  special  law  is  "  to  perform 
contracts,  or  to  keep  trust."  This,  we  are  told  in  the  essay  on 
Liberty,  "  is  a  precept  of  the  natural  law,"  since  it  is  "  a  thing 
necessary  for  the  obtaining  of  peace."  In  the  Leviathan  we  are 
told  that  "in  this  law  of  nature,  consisteth  the  fountain  and 
original  of  JUSTICE."  It  is  interesting  to  compare  this  with 
Plato's  definition  of  justice2  as  a  kind  of  natural  harmony  and 
healthy  habit  of  mind.  Justice,  says  Dante  in  the  De  Monarchia, 
is  a  certain  straightness  or  rule,  rejecting  the  oblique  on  either 
side.  Bentham  varies  the  conception :  "Of  two  opposite 
methods  of  action  do  you  desire  to  know  which  should  have  the 
preference  ?  Calculate  their  effect  in  good  and  evil,  and  prefer 
that  which  promises  the  greater  sum  of  good."  Hobbes  is  really, 
however,  as  utilitarian  as  Bentham,  as  equity-loving  as  Dante. 
"  The  greater  sum  of  good  "  is  always  the  end  aimed  at.  "  Jus- 
tice ...  is  a  rule  of  reason,  by  which  we  are  forbidden  to  do 
anything  destructive  to  our  life  ;  and  consequently  a  law  of 

1  Tho  first  part  of  the  treatise  De  Corpore  Politico  (Molosworth,  vol.  iv.) 
also  deals  fully  with  the  laws  of  nature  following  the  division  into  a  primary 
law  and  secondary  law.  Soo  also  the  Answer  to  Bishop  Bramliall  (Moles- 
worth,  vol.  iv.)  and  A  Dialogue  of  the  Common  Laics  (Molosworth.  vol.  vi.). 

-  Republic,  Book  IV. 


THOMAS  HOBBES  201 

nature."  This  utilitarian  conception  is  brought  out  in  his 
seventh  law,  which  declares  that  the  degree  of  punishment  must 
depend  on  the  good  that  punishment  produces.  "  Men  look  not 
at  the  greatness  of  the  evil  past,  but  the  greatness  of  the  good  to 
follow."  The  ninth  law  anticipates  the  doctrine  of  Rousseau  : 
"  that  every  man  acknowledge  another  for  his  equal  by  nature." 

Both  in  the  essay  on  Liberty  and  in  the  Leviathan  we  have  the 
same  high  view  of  the  laws  of  nature  set  forth.  In  the  first  we 
read  that  "  the  laws  of  nature  are  immutable  and  eternal :  what 
they  forbid  can  never  be  lawful ;  what  they  command,  can  never 
be  unlawful,"  and  in  the  latter  "  the  laws  of  nature  are  immutable 
and  eternal ;  for  injustice,  ingratitude,  arrogance,  pride,  iniquity, 
acception  of  persons,  and  the  rest,  can  never  be  made  lawful. 
For  it  can  never  be  that  war  shall  preserve  life,  and  peace  destroy 
it.  The  same  laws,  because  they  oblige  only  to  a  desire  and 
endeavour,  I  mean  an  unfeigned  and  constant  endeavour,  are  to 
be  observed.  For  in  that  they  require  nothing  but  endeavour, 
he  that  endeavoureth  their  performance,  fulfilleth  them  ;  and  he 
that  fulfilleth  the  law,  is  just." 

Hobbes  in  the  next  development  of  his  doctrine  of  natural  law 
is  brought  face  to  face  with  the  difficulties  that  belong  to  the 
conception.  He  is  logically  led  to  declare  that  since  the  man 
who  fulfils  the  natural  laws  is  just,  "  the  science  of  them  is  the 
true  and  only  moral  philosophy.  For  moral  philosophy  is 
nothing  else  but  the  science  of  what  is  good  and  evil  in  the  con- 
versation of  society  and  mankind.  .  .  .  Now  the  science  of 
virtue  and  vice,  is  moral  philosophy  ;  and  therefore  the  true  doc- 
trine of  the  laws  of  nature,  is  the  true  moral  philosophy."1  He 
adds  in  the  essay  on  Liberty  that  "  all  writers  do  agree,  that  the 
natural  law  is  the  same  with  the  moral."  Are  then  these  state- 
ments in  fact  laws  ?  Hobbes  of  course  feels  the  difficulty  : 
"  Those  dictates  of  reason,  men  used  to  call  by  the  name  of  laws, 
but  improperly  :  for  they  are  but  conclusions,  or  theorems  con- 
cerning what  conduceth  to  the  conservation  and  defence  of  them- 
selves ;  whereas  law,  properly,  is  the  word  of  him  that  by  right 
hath  command  over  others.  But  yet  if  we  consider  the  same 
theorems,  as  delivered  in  the  word  of  God,  that  by  right  com- 
mandeth  all  things  ;  then  they  are  properly  called  laws.' 2  Here 

1  Leviathan,  vol.  iii.,  p.  147. 

2  Ibid.,  Part  I.,  cap.  xv.  ;  see  also  the  essay  on  Liberty,  cap.  iii.,  and 
De  Corpore  Politico.     Comparo  Dante's  affirmation  in  the  De  Monarchia  that 
"  Right,  since  it  is  a  good,  exists  primarily  in  themind  of  God." 


202  THOMAS  HOBBES 

then  we  are  again  thrown  back  on  a  supernatural  power  from 
whom  law  issues  as  "  the  command  of  him  or  them  that  have 
coercive  power."  The  apparently  automatic  punishment  in- 
volved in  the  breach  of  natural  laws  led,  empirically,  to  the 
recognition  of  those  laws  ;  led  to  their  formulation  as  laws  obedi- 
ence to  which  is  an  antecedent  condition  to  life  itself  ;  led  to  the 
recognition  of  the  creative  force  behind  nature,  as  the  Law-giver 
from  whom  proceed  the  laws  or  conditions  obedience  to  which 
will  secure  the  safety  of  the  creature.  He  who  creates  a  living 
thing  must  create  a  cage  for  it  to  dwell  in  ;  must  in  fact  formu- 
late the  conditions  that  will  enable  the  creature  to  live  and  prosper. 
Those  conditions  are  contained  in  the  so-called  laws  of  nature. 
That  appears  to  be  the  position  adopted  by  Hobbes.  It  is  the 
argument  from  design  inverted.  In  that  argument  from  the 
laws  of  nature  we  infer  God.  Here  we  refer  the  laws  of  nature  to 
God  as  an  intuitive  conception. 

Kant  and  the  Laws  of  Nature. — Immanuel  Kant  has  something 
of  Hobbes's  idea  in  his  Meiaphysic  of  Morals.  There  he  treats  of 
obligatory  laws  for  which  an  external  legislation  is  possible. 
These  he  calls  external  laws  :  "  Those  External  Laws,  the  obliga- 
toriness  of  which  can  be  recognized  by  reason  a  priori  even  with- 
out an  External  Legislation,  are  called  Natural  Laws.  Those 
laws  again,  which  are  not  obligatory  without  Actual  External 
Legislation,  are  called  Positive  Laws.  An  External  Legislation, 
containing  pure  Natural  Laws,  is  therefore  conceivable  ;  but  in 
that  case  a  previous  Natural  Law  must  be  pre-supposed  to  estab- 
lish the  authority  of  the  Law-giver  by  the  right  to  subject  others 
to  obligation  through  his  own  act  of  Will."1  Hobbes  had  no  diffi- 
culty in  pre-supposing  this  previous  natural  law.  The  relation- 
ship of  Creator  and  created  gives  birth  to  such  a  law.  When 
Kant  declares  that  "  the  Law  which  is  imposed  upon  us  a  priori 
and  unconditionally  by  our  own  Reason  may  also  be  expressed 
as  proceeding  from  the  Will  of  a  Supreme  Law-giver  or  the  Divine 
Will,"  his  position  is  practically  identical  with  that  of  Hobbes. 
Nor  would  Hobbes  have  quarrelled  with  the  conclusion  that  "  such 
a  Will  as  Supreme  can  consequently  have  only  Rights  and  not 
Duties  ;  it  only  indicates  the  idea  of  a  moral  Being  whose  Will  is 
Law  for  all,  without  conceiving  of  Him  as  the  Author  of  that 
Will."  The  laws  of  nature,  said  Lord  Verulam  in  his  Confession 
of  Faith,  are  "  nothing  but  the  laws  of  the  creation,"  "  they  began 
1  Kant's  Philosophy  of  Law  (W.  Hastie),  p.  33. 


THOMAS  HOBBES  203 

to  be  in  force  when  God  first  rested  from  His  works  and  ceased 
to  create."  In  his  famous  argument  in  the  Case  of  the  Postr-Nati 
of  Scotland  he  declared  that  the  law  of  nature  underlay  municipal 
law,  since  from  that  law  flow  preservation  of  life,  liberty,  and  the 
society  of  man  and  wife — in  fact,  the  elements  of  human  society. 
Hobbes  perhaps  adopted  from  Bacon,  with  whom  at  one  time  he 
had  close  intercourse,1  this  conception  of  natural  law — a  noble 
conception,  for  it  enables  us  to  see  the  basis  of  natural  law  upon 
which  the  palace  of  municipal  law  must  be  built.  Natural  law 
in  the  Baconian  or  Hobbesian  or  Kantian  sense  must  precede  in 
the  natural  evolution  of  society  not  only  the  artifices  of  the  poli- 
tical law-giver,  but  even  the  iron  rule  of  custom.  These  thinkers 
are  concerned  with  the  beginnings  of  law  in  human  society,  wjth 
something  that  lies  behind  even  the  earliest  customary  forms. 
This  something  is  not  natural  law  in  the  sense  of  natural 
sequence,  "the  will  or  ought  of  natural  sequence,"  to  use  Sir 
Frederick  Pollock's  phrase,2 but  is  akin  to  "the  ought  of  rational 
conduct  and  ethical  duty  "  which  the  early  mind  confounded 
with  the  inevitableness  of  sequence  in  nature. 

Hobbes  the  Lawyer. — Whence  did  Hobbes  derives  his  doctrine 
of  the  law  of  nature  ?  Possibly  through  Bacon,  but  more  prob- 
ably through  Bacon's  law-books.  Hobbes  in  A  Dialogue  of  the 
Common  Law  tells  us  directly  or  by  implication  of  the  law-books 
that  he  had  read  and  studied.  Now  he  was  no  professional 
lawyer.3  The  civil  law  at  Oxford  never  captured  him,  nor  did 
he  haunt  the  Inns  of  Court  or  Chancery  in  London  save  as  the 
friend  of  Bacon  and  Selden.  He  was  not,  nor  did  he  ever  purpose 
to  become,  a  professional  lawyer.  But  at  some  tune  or  another 
he  had  a  perfect  banquet  of  law.  He  tells  us4  that  he  had  "  looked 
over  the  titles  of  the  statutes  from  Magna  Charta  downward  to 

1  Hobbes  is  said  to  have  been  one  of  the  hands  that  translated  The  Life 
of  Henry  VII. 

2  Laws  of  Nature  and  Laws  of  Men. 

3  One  is  almost  forced  to  believe  that  Hobbes  had  a  legal  training,  but 
a  search  has  proved  fruitless.     There  was  a  Thomas  Hobbes  called  to  the 
Bar  at  Lincoln's  Inn  in  1505,  another  called  at  Gray's  Inn  1592.     The  first 
date  is  a  century,  the  second  a  few  years  too  early.     A  Thomas  Hobbes  of 
the  Middle  Temple  was  practising  as  a  common  attorney  after  1635,  and  had 
been  a  gentleman  of  the  House  since  1620.      But  ho  is  not  the  philosopher. 
Yet  the  statement  "  I  meant  not  to  plead  for  any  but    myself,"  suggests 
entrance  at  an  Inn  of  Court  or  Chancery.     It  may  well  be  that  Hobbes  was 
entered  at  an  Inn  of  Chancery.     Unfortunately  the  records  of  the  Inns  of 
Chancery  are  scattered  "among  private  hands,  and  for  the  most  part  are 
probably  destroyed.     If  any  are  in  existence  they  should  be  deposited  at  the 
British  Museum. 

4  A  Dialogue  of  the  Common  Law,  vol.  vi.,  p.  3. 


204  THOMAS  HOBBES 

this  present  time.  I  left  not  one  unread,  which  I  thought  might 
concern  myself ;  which  was  enough  for  me,  that  meant  not  to 
plead  for  any  but  myself .  ...  I  have  also  diligently  read  over 
Littleton's  book  of  Tenures,  with  the  commentaries  thereupon  of 
the  renowned  lawyer  Sir  Edward  Coke."  He  goes  on  to  praise 
Coke  for  declaring  "that  reason  is  the  soul  of  the  law,"  and 
expanding  the  expression  "  Nihil,  quod  est  contra  rationem,  est 
licitum  "  into  a  complete  scheme  of  law.  He  gives  us  Bracton's 
definition  of  law  :  "  Lex  est  sanctio  justa,  jubens  honesta,  et 
prohibens  contraria."  He  calls  Bracton  "the  most  authentic 
author  of  the  common  law,"  and  quotes  freely  from  him,  in  addi- 
tion to  Fleta,  and  Fitzherbert.  He  exhibits  a  full  knowledge  of 
the  history  of  procedure  in  England.  He  uses  Coke's  Institutes 
with  ease  and  judgment.  He  quotes  Christopher  St.  German's 
Doctor  and  Student- — a  most  significant  fact.  He  was  closely 
familiar  with  Roman  law  and  Roman  legal  procedure  ;  his  know- 
ledge of  the  statute  and  common  law  was  intimate  ;  while  some 
of  the  obscurer  legal  problems  are  dealt  with  in  professional 
manner.  He  must  have  read  the  reports  available  in  his  day, 
and  did  not  restrict  himself  to  the  more  notable,  for  in  dealing 
with  "  Crimes  Capital "  he  says  :  "  Also  I  find  in  the  reports  of 
Sir  John  Davis,  Attorney-General  for  Ireland,  that  in  the  time 
of  King  Henry  VI.  a  man  was  condemned  for  treason  for  saying 
the  King  was  a  natural  fool,  and  unfit  to  govern." 

Hobbes  does  not  spare  his  criticism  of  Coke.  He  declares  : 
"  Truly  I  never  read  weaker  reasoning  in  any  author  of  the  law 
of  England,  than  in  Sir  Edward  Coke's  Institutes,  how  well  soever 
he  could  plead."  The  lawyer  with  whom  the  philosopher  holds 
this  dialogue  replies  :  "  Though  I  have  heard  him  much  repre- 
hended by  others  as  well  as  by  you,  yet  there  be  many  excellent 
things,  both  for  subtilty  and  for  truth,  in  these  his  Institutes." 
Hobbes  answers  with  cunning  contempt  :  "  No  better  things  than 
other  lawyers  have,  that  write  of  the  law  as  of  a  science.  His 
citing  of  Aristotle,  and  of  Homer,  and  of  other  books  which  are 
commonly  read  by  gownmen,  do,  in  my  opinion,  but  weaken  his 
authority  ;  for  any  man  may  do  it  by  a  servant." 

Edmund  Plowden. — Hobbes's  knowledge  of  law-books  must 
have  extended  to  those  mines  of  legal  learning  and  metaphysical 
thought,  Plowden's  Reports  and  Qucsries.  Edmund  Plowden, 
who  was  born  in  1518  and  died  in  1585,  is  reputed  to  have  been 
the  most  learned  lawyer  of  the  Tudor  period,  and  his  published 


THOMAS  HOBBES  205 

works  certainly  sustain  his  reputation.  He  was  a  man  whose 
intellectual  attainments  were  both  feared  and  respected  in  his 
own  time.  As  an  unflinching  Roman  Catholic  he  was  prepared, 
if  necessary,  to  defend  his  position  against  both  Crown  and  Parlia- 
ment, relying  upon  the  weight  and  reasonableness  of  the  common 
law.  In  the  very  year  (1554)  that  he  was  acting  as  a  justice  of 
gaol  delivery  in  the  county  of  Salop,  he  withdrew  from  Parliament 
as  a  protest  against  their  proceedings,  and  hi  answer  to  a  charge 
of  contempt  he  "  took  a  traverse  full  of  pregnancy  "  so  effectively 
that  the  Attorney-General  in  post-haste  dropped  the  matter. 
Famous  in  the  history  of  the  Middle  Temple  as  Treasurer  when 
the  great  Hall  was  a-building,  he  was  at  the  time  regarded  with 
suspicion  as  the  shelterer  within  the  precincts  of  the  Inn  of  many 
papists.  He  worshipped  openly  as  a  Roman  Catholic  and  defied 
all  legal  proceedings.  His  one  act  of  abnegation  for  the  faith 
was  a  tribute  to  his  brilliancy  and  independence.  Queen  Eliza- 
beth offered  him  the  woolsack.  Acceptance  would  have  involved 
a  repudiation  of  Rome,  and  he  refused  the  honour  with  simple 
dignity.  A  great  figure  in  a  great  age,  he  left  behind  him  a  repu- 
tation that  has  become  almost  legendary.  In  him  were  enshrined 
all  the  wisdom  and  aU  the  principles  of  that  common  law  which 
the  Middle  Ages,  ending  at  about  the  date  of  his  birth,  had  com- 
piled for  the  use  of  Englishmen.  Three  years  after  Plowden's 
death  Hobbes  was  born,  and  when  some  thirty  years  later  he 
turned  to  the  study  of  English  law,  Plowden's  reputation  as  an 
authority  had  reached  its  height.  Hobbes  must  therefore  of 
necessity  have  used  the  Reports  and  Queries,  and  in  fact  we  find 
that  from  those  sources  he  drew  some  of  his  most  original  thoughts 
about  law  and  government. 

In  certain  cases  recorded  in  The  Reports  we  get  the  laws  of 
nature  and  of  reason  explained  and  examined  with  elaboration 
and  force.  Serjeant  Morgan  in  the  case  of  Colthirst  v.  Bejushin1 
speaks  of  "  Reason,  which  is  the  Mother  of  all  Laws."  The  case 
which  deals  most  elaborately  with  the  law  of  nature  is,  however, 
Sharington  v.  Strotton2 — the  report  of  which  deserves  the  most 
careful  attention  from  students  of  the  history  of  law.  In  this  case 
we  find  Aristotle  and  The  Politics  quoted  freely,  while  the  Law  of 
Nature  is  treated  in  precisely  the  manner  that  it  was  subsequently 

1  Common  Bench,  4th  ed.,  vi.  The  Reports,  London,  1779,  at  p.  27.     Soo 
also  1  Pinch  4  ;  2  Finch  4  ;  Doct.  and  Stud.,  lib.  i.,  cap.  ii. 

2  7  &  8  Eliz.     The  Reports,  at  p.  303. 


206  THOMAS  HOBBES 

treated  by  Hobbes.  We  read  in  the  argument  of  the  common  law 
pursuing  the  dictates  of  nature  ;  of  "  the  Law  of  Nature,  the  Law 
of  Reason,  and  the  Law  of  God  "  ;  that  "  there  is  nothing  ordained 
in  our  law  contrary  to  Nature  or  Reason,  or  the  Law  of  God  "  ; 
that  "  the  elder  brother  is  bound  by  the  Law  of  Nature  to  aid 
and  comfort  his  younger  brother,  as  the  father  is  the  son."  In 
the  argument,  again,  Bromley  and  his  Apprentice  allege  that 
"  things  proceeding  from  nature  are  respected  not  only  in  philo- 
sophy, but  also  in  our  law,  and  are  of  great  force  and  operation 
in  our  law,  and  therefore  are  esteemed  to  be  good  and  sufficient 
considerations.  From  whence  it  follows  that  the  consideration  of 
Andrew  Baynton  here  expressed  for  the  provision  of  his  heirs 
males  is  a  sufficient  consideration  to  raise  a  use  in  the  land," 
"  Every  man  has  a  natural  desire  to  leave  the  substance  which 
he  has  gotten  by  toil  and  labour  to  one  of  his  own  blood." 
Catline,  C.  J.,  upheld  this  position.  "  And  the  Apprentice  said, 
May  it  please  your  lordship  to  show  us,  for  our  learning,  the  causes 
of  your  judgment.  And  Catline  said,  It  seems  to  us  that  the 
affection  of  the  said  Andrew  for  the  provision  of  the  heirs  males 
which  he  should  beget,  and  his  desire  that  the  land  should  con- 
tinue in  the  blood  and  name  of  Baynton,  and  the  brotherly  love 
which  he  bore  to  his  brothers,  are  sufficient  considerations  to  raise 
the  uses  in  the  land.  And  where  you  said  in  your  argument 
'  Naturae  vis  maxima,'  I  say  '  Natura  bis  maxima,'  and  it  is  the 
greatest  consideration  that  can  be  to  raise  a  use." 

In  the  Case  of  Mines1  we  read  of  "  the  common  law,  which  is 
no  other  than  pure  and  tried  reason  "  ;  "  the  common  law,  which 
is  grounded  upon  reason."  In  this  case  we  also  find  embedded 
Hobbes's  doctrine  of  sovereignty,  and  on  this  account  the  case 
must  take  an  important  place  in  the  history  of  politics.  The 
following  sentence  exactly  summarizes  one  aspect  of  the  position 
Hobbes  adopted  :  "  The  office  of  the  king,  to  which  the  law  has 
appointed  him,  is  to  preserve  his  subjects ;  and  their  preserva- 
tion consists  in  two  things,  viz.  in  an  army  to  defend  them  against 
hostilities,  and  in  good  laws."  Reference,  in  this  matter,  must 
also  be  made  to  the  Case  of  the  Dutchy  of  Lancaster,2  in  which  the 
metaphysics  of  the  dual  personality  resident  in  kingship  are  duly 
elaborated  by  Plowden.  The  king  is  "  a  body  politic  and  a  body 
natural  together  indivisible."  Hobbes's  views  on  statute  law 
may  be  compared  with  some  of  the  statements  on  the  same 

1  9  &  10  Eliz.,  The  Reports,  p.  316.  -  4  Eliz.,  Reports,  p.  213. 


THOMAS  HOBBES  207 

subject,  contained  in  various  cases  reported  by  Plowden.  In  the 
Earl  of  Leicester  v.  Heydon1  we  read  that  "  every  subject  is  party 
and  privy  to  an  Act  of  Parliament."  In  the  very  important  case 
of  Partridge  v.  Sharpe  and  Croker2  we  are  given  an  interesting 
doctrine  of  interpretation  :  "  Words  which  are  no  other  than  the 
verberations  of  the  air,  do  not  constitute  the  statute,  but  are  only 
the  image  of  it,  and  the  life  of  the  statute  rests  in  the.  minds  of 
the  expositors  of  the  words,  that  is  the  makers  of  the  statutes. 
And  if  they  are  dispersed,  so  that  their  minds  cannot  be  known, 
then  those  who  may  approach  nearest  to  their  minds  shall  construe 
the  words,  and  these  are  the  sages  of  the  law,  whose  talents  are 
exercised  in  the  study  of  such  matters."  Again,  in  the  same  case 
(p.  88)  we  are  told  "  that,  which  law  and  reason  allows,  shall  be 
taken  to  be  in  force  against  the  words  of  statutes.  ...  So  that 
there  they  would  not  expound  the  statute  contrary  to  what  the 
common  law  and  common  reason  aUowed,  notwithstanding  the 
words  were  against  it."  Again,  in  the  case  of  Fidmerston  v. 
Steward3  we  are  told  that  "  the  judges  have  expounded  the  text 
which  is  general  to  be  but  particular,  which  exposition  is  contrary 
of  the  text,  because  the  text  is  contrary  to  reason."  In  the  case 
to  Stowel  v.  Lord  Zouch4  the  weight  of  the  common  law  is  more 
openly  magnified  :  "  The  way  to  apprehend  the  sense  [of  an  Act] 
is  to  consider  the  common  law,  which  is  the  ancient  of  every  posi- 
tive law."  Indeed  the  judges  are  "  to  approach  as  near  as  they 
can  to  the  reason  of  the  common  law."  The  same  case  gives  us 
that  end  of  all  law  upon  which  Hobbes  dwells.  "Peace  and 
concord  is  the  end  of  all  laws,  and  .  .  .  the  law  was  ordained 
for  the  sake  of  peace."  "  The  law  hath  no  other  end  but  repose, 
and  the  law  was  ordained  to  put  a  stop  to  contention,  and  to 
make  peace."  The  law  of  nature,  the  necessity  of  things,  more- 
over lies  behind  everything  else.  "  Where  the  words  of  a  law  are 
broken  to  avoid  a  greater  inconvenience,  or  by  necessity,  or  com- 
pulsion, or  involuntary  ignorance,  in  all  these  cases  the  law  itself  is 
not  broken."5  This  position  recalls  Bacon's  doctrine  (in  his  Maxims 
of  the  Law),  "Necessitas  inducit  privilegium  quoad  jura  privata." 
It  would  be  possible  greatly  to  multiply  the  instances  where 
Hobbes  is  indebted  to  the  common  law  and  common  sense  of 
Plowden.  That  he  studied  his  works  there  can  be  no  manner  of 

1  13  Eliz.,  Reports,  p.  396.  -  6  &  7  Ed.  VI.,  Reports,  83. 

3  1  &  2  P.   &  M.  Reports,   109 ;  see  also  Stradley  v.  Steimrd,  2  Eliz., 
pp.  804-5. 

4  4  Eliz.,  pp.  363-5.          5  Iteniger  v.  Foyofise,  4  Ed.  VI.,  Reports,  p.  18. 


208  THOMAS   HOBBES 

doubt.  The  great  Selden  was  also  drawn  upon,  and  last  but  not 
least  Christopher  St.  German. 

John  Selden. — "Our  learned  Selden"  (1584-1654)  was  on 
terms  of  intimacy  with  Hobbes,  and  many  and  fierce  were  the 
battles  that  they  fought  on  fundamental  issues.  Richard  Baxter 
tells  us,  quoting  Sir  Matthew  Hale,  that  Selden  "  was  a  great  ad- 
versary to  Hobbs  his  errors  ;  and  that  he  had  seen  him  openly 
oppose  him  so  earnestly,  as  either  to  depart  from  him,  or  drive 
him  out  of  the  room."  One  must  grieve  that  no  Boswell  has 
recorded  these  conversations  between  two  of  the  greatest  intel- 
lects that  England  has  produced.  That  they  modified  each 
other's  outlook  there  can  be  no  doubt.  We  may  compare  the 
following  passage  from  Selden's  Table-Talk  with  the  general 
position  adopted  by  Hobbes  with  respect  to  the  sanction  attach- 
ing to  the  Law  of  Nature  : 

"  I  cannot  fancy  to  myself  what  the  Law  of  Nature  means  but 
the  Law  of  God.  How  should  I  know  I  ought  not  to  steal,  I 
ought  not  to  commit  adultery,  unless  somebody  had  told  me 
so  ?  Surely  'tis  because  I  have  been  told  so  ?  'Tis  not  because  I 
think  I  ought  not  to  do  them,  nor  because  you  think  I  ought  not ; 
if  so,  our  minds  might  change.  Whence  then  comes  the  restraint  ? 
From  a  higher  Power,  nothing  else  can  bind.  I  cannot  bind 
myself,  for  I  may  untye  (sic)  myself  again  ;  nor  an  equal  cannot 
bind  me,  for  we  may  untie  one  another.  It  must  be  a  superior 
Power,  even  God  Almighty.  If  two  of  us  make  a  bargain,  why 
should  either  of  us  stand  to  it  ?  What  need  you  care  what  you 
say,  or  what  need  I  care  what  I  say  ?  Certainly  because  there 
is  something  about  me  that  tells  me  Fides  est  servanda,  and  if 
we  alter  our  minds  and  make  a  new  bargain,  there's  Fides  servanda 
there  too."1 

Again,  the  definition  of  King  is  not  far  from  the  fundamental 
ideas  of  Hobbes  :  "  A  King  is  a  thing  men  have  made  for  their 
own  sakes,  for  quietness'  sake."  On  the  other  hand,  essential 
differences  appear  when  Selden  declares  that  "  Every  law  is  a 
contract  between  the  King  and  the  People,  and  therefore  to  be 
kept."  Many  other  passages,  however,  show  that  this  was  not 
Selden's  true  position. 

Christopher  St.  German. — The  Dialogue  of  the  Common  Laics 
amply  proves  that  Hobbes  knew  all  that  was  to  be  known  in 

j-  Table-Talk,  being  the  Discourses  of  John  Selden,  Esq.  :  or  his  Sence  of 
various  matters  of  Weight  and  High  Consequence  relating  especially  to  Religion 
and  State  (1689).  Reprinted  by  Edward  Arbor,  1808. 


THOMAS   HOBBES  209 

the  way  of  the  theory,  philosophy,  and  history  of  law  in  his  day. 
It  is  indeed  impossible  to  resent  the  conclusion  that  he  was  a 
pupil,  a  very  apt  pupil,  of  Francis  Bacon  and  absorbed  all  that 
that  master-mind  had  to  teach  in  the  way  of  law.  Probably  they 
both  obtained  their  theory  of  the  law  of  nature  from  Christopher 
St.  German  (1460  ?-1540),  the  author  of  Doctor  and  Student  and 
A  Treatise  concernynge  the  Power  of  the  Clergye  and  the  Lawes  of 
the  Realme,  and  famous  for  his  controversies  with  Sir  Thomas 
More.  The  Dialogue  between  a  Doctor  of  Divinity  and  a  Student 
of  the  laws  of  England  first  appeared  in  1518,1  and  it  at  once 
became  a  textbook  which  was  not  displaced  by  Blackstone.  An 
eighteenth  edition  of  an  English  version  appeared  in  1815,  dedi- 
cated "  to  the  young  students  and  professors  of  law  in  the  general 
Inns  of  Court."  It  is  still  apparently  in  practical  use  in  America. 
In  the  first  Dialogue  we  are  told  that  there  is  a  law  eternal,  itself 
unknowable,  but  which  may  be  revealed  to  man  either  by  the  light 
of  the  natural  understanding  which  gives  us  the  law  of  reason, 
or  by  heavenly  revelation  which  gives  us  the  law  of  God,  or  by 
the  order  of  a  prince  "  that  hath  a  power  to  set  a  law  upon  his 
subjects,"  which  gives  us  the  law  of  man. 

"  The  law  of  reason  is  written  in  the  heart  of  every  man  .  .  . 
teaching  him  what  is  to  be  done,  and  what  is  to  be  fled  .  .  .  the 
law  of  reason  ordereth  a  man  to  the  felicity  of  this  life  .  .  .  the 
law  of  reason  teacheth,  that  good  is  to  be  loved,  and  evil  is  to 
be  fled  :  also  that  thou  shalt  do  to  another,  that  thou  wouldest 
another  should  do  unto  thee  ;  and  that  we  may  do  nothing 
against  truth  ;  and  that  a  man  must  live  peacefully  with  others  ; 
that  justice  is  to  be  done  to  every  man  ;  and  also  that  wrong 
is  not  to  be  done  to  any  man  ;  and  that  also  a  trespasser  is  worthy 
to  be  punished  ;  and  such  other.  Of  the  which  follow  divers 
other  secondary  commandments,  the  which  be  as  necessary 
conclusions  derived  of  the  first.  As  of  that  commandment,  that 
good  is  to  be  beloved  ;  it  followeth,  that  a  man  should  love  his 
benefactor  ;  for  a  benefactor,  in  that  he  is  a  benefactor,  includeth 
in  him  a  reason  of  goodness,  for  else  he  ought  not  to  be  called 
a  benefactor ;  that  is  to  say,  a  good  doer,  but  an  evil  doer : 
[Cic.  1.  2.  De  Legibus]  and  so  in  that  he  is  a  benefactor,  he  is  to  be 
beloved  in  all  times  and  in  all  places.  And  this  law  also  suffereth 
many  things  to  be  done  :  as  that  it  is  lawful  to  put  away  force 
with  force  :  and  that  it  is  lawful  for  every  man  to  defend  himself 
and  his  goods  against  an  unlawful  power.  And  this  law  runneth 

1  So  it  is  stated  in  the  1815  edition,  but  tho  Dictionary  of  National 
Biography  says  1523. 

15 


210  THOMAS   HOBBES 

with  every  man's  law,  and  also  with  the  law  of  God,  as  to  the 
deeds  of  man,  and  must  be  always  kept  and  observed,  and  shall 
always  declare  what  ought  to  follow  upon  the  general  rules  of 
the  law  of  man,  and  shall  restrain  them  if  they  be  anything 
contrary  to  it."1 

It  is  clear  enough  that  Hobbes's  laws  of  nature  are  derived 
direct  from  Christopher  St.  German,  though  no  doubt  they  are 
modified  by  some  knowledge  of  the  De  Monarchia  of  Dante,  of, 
possibly,  the  works  of  Marsilio,  and  of  the  classical  sources  from 
which  the  pre-Beformation  lawyer  derived  his  conceptions.  Sir 
Frederick  Pollock  in  his  volume  on  The  Expansion  of  the  Common 
Law,  p.  109,  dealing  with  the  fifth  chapter  of  the  first  Dialogue 
notes  that — 

"  The  Student  ( f  the  laws  of  England,  being  asked  by  the  Doctor 
of  Divinity  what  he  had  to  say  of  the  law  of  nature,  makes  answer 
that  among  common  lawyers  the  term  is  not  in  use,  but  they 
speak  of  reason  where  a  canonist  or  civilian  would  speak  of  the 
law  of  nature.  '  It  is  not  used  among  them  that  be  learned 
in  the  laws  of  England,  to  reason  what  thing  is  commanded  or 
prohibited  by  the  law  of  nature,  and  what  not,  but  all  the 
reasoning  in  that  behalf  is  under  this  manner.  As  when  anything 
is  grounded  upon  the  law  of  nature,  they  say,  that  reason  will 
that  such  a  thing  be  done  ;  and  if  it  be  prohibited  by  the  law 
of  nature,  they  say  it  is  against  reason,  or  that  reason  will  not 
suffer  that  to  be  done.'  It  is  curious  that  this  passage  should 
have  been  so  far  as  I  know,  completely  overlooked  ;  but  the 
mediaeval  tradition  of  the  law  of  nature  was  broken  up  by  the 
controversies  of  the  Reformation,  and  seventeenth-century 
writers  are  quite  confused  about  it." 

This,  however,  hardly  applies  to  Thomas  Hobbes.  He  almost 
certainly  knew  the  passage  here  quoted.  Sir  Frederick  Pollock 
points  out  that,  directly  or  indirectly,  "the  law  of  nature,  as 
accepted  throughout  the  Middle  Ages,  was  derived  from  Greek 
theories  of  ethics."  Hobbes  carried  on  the  medieval  doctrine, 
and  in  a  new  and  non-scholastic  guise  handed  it  down  to  the 
jurists  and  philosophers  of  the  eighteenth  and  nineteenth  cen- 
turies. If  Hobbes  had  no  other  claim  as  a  jurist,  he  could  claim 
that  he  revived  for  the  purposes  of  social  philosophy  and  juridical 
thought  the  whole  mediaeval  conception  of  the  law  of  nature.  The 
Leviathan  carried  Hobbes's  ideas  far  and  wide,  and  Christopher 

1  Doctor  and  Student,  Dialogue  I.,  cap.  ii. 


THOMAS   HOBBES  211 

St.  German  became  the  unconscious  cause  of  a  great  new  develop- 
ment of  a  conception  that  had  suffered  many  things  from  many 
thinkers,  on  its  way  from  Greece  to  Western  Europe  through 
Rome. 

Hobbes  probably  took  the  dialogue  form  for  his  work  on  the 
common  law  from  St.  German's  treatise,  but  the  Dialogue  of  the 
Common  Laws  has  brilliant  literary  qualities  not  altogether  shared 
by  the  fine  translation  of  the  Dialogue  de  Fundamentis  Legum 
et  de  Conscientia.  If  Hobbes  developed  in  the  Leviathan  for  future 
use  the  idea  of  natural  law,  in  his  Dialogue  he  attempted  to  add 
a  new  sanctity  to  the  idea  of  the  common  law.1  It  is  natural 
reason,  natural  equity,  philosophy  itself.  The  philosopher  demies 
a  law  as  "  the  command  of  him  or  them  that  have  the  sovereign 
power,  given  to  those  that  be  his  or  their  subjects,  declaring 
publicly  and  plainly  what  every  of  them  may  do,  and  what 
they  must  forbear  to  do."  The  distinction  between  law  and  right 
is  next  attempted,  and  with  bitter  jibes  at  Coke  for  his  ignorance 
in  the  matter.  "  Law  obligeth  me  to  do,  or  forbear  the  doing  of 
something  ;  and  therefore  it  lays  upon  me  an  obligation.  But 
my  right  is  a  liberty  left  me  by  the  law  to  do  anything  which 
the.  law  forbids  me  not,  and  to  leave  undone  anything  which  the 
law  commands  me  not.  Did  Sir  Edward  Coke  see  no  difference 
between  being  bound  and  being  free  ?"  Hobbes  goes  on  to  show 
that  Bracton's  doctrine  concerning  the  rights  of  sovereignty  "  is 
the  ancient  common  law,  and  that  the  only  bridle  of  the  kings  of 
England  ought  to  be  the  fear  of  God."  2  The  supreme  power  of 
the  king  leads  to  an  elaborate  discussion  "  Of  Courts."  Hobbes 
proves  that  "  the  jurisdiction  of  Courts  cannot  easily  be  distin- 
guished, but  by  the  king  himself  in  his  Parliament.  The  lawyers 
themselves  cannot  do  it ;  for  you  see  what  contention  there  is 
between  Courts,  as  well  as  between  particular  men."  In  the 
course  of  this  and  other  discussions,  the  unhappy  Sir  Edward 
Coke  is  trampled  under  foot  with  a  vigour  peculiar  to  Hobbes. 
There  is  a  certain  ingratitude  in  the  insults  that  are  levelled  at 
him,  for  Hobbes  learnt  much  of  his  law  from  the  Institutes.  How- 
ever, the  reason  for  the  attacks  is  plain  enough.  He  is  accused 
of  quoting  an  expired  statute  "  on  purpose  to  diminish,  as  he 
endeavours  to  do  throughout  his  Institutes,  the  King's  authority, 

1  Derived  from  Plowdon's  Reports. 

2  Compare  the  statement  in  the  De  Monarchia :  "  It  is  plain   that  the 
authority  of  the  temporal  monarch  descends  upon  him  without  any  mean 
from  the  fountain  of  universal  authority." 


212  THOMAS   HOBBES 

or  to  insinuate  his  own  opinions  among  the  people  for  the  law  of 
the  land."  An  even  more  serious  charge  follows  : "  He  endeavours 
by  inserting  Latin  sentences,  both  in  his  text  and  in  the  margin, 
as  if  they  were  the  principles  of  the  law  of  reason,  without  any 
authority  of  ancient  lawyers,  or  any  certainty  of  reason  in  them- 
selves, to  make  men  believe  they  are  the  very  ground  of  the  law 
of  England."  It  was  in  much  the  same  spirit  that  he  attacked 
Wallis  of  the  Boyal  Society  in  later  years.  Hobbes  could  not 
be  moderate  in  controversy  :  he  must  needs  slay,  even  if  he  has 
to  do  it  with  the  jawbone  of  an  ass. 

Hobbes  and  the  Law. — A  perusal  of  the  Dialogue  exhibits  not 
only  Hobbes's  fine  knowledge  of  English  law,  not  only  his  dia- 
lectical power  by  which  he  squares  the  common  law  with  his 
doctrine  of  kingship,  but  a  keen  insight  into  the  abuses  of  the 
legal  system  in  vogue  in  his  day,  and  for  more  than  two  centuries 
after  his  day.  Some  brief  extracts  will  show  his  general  attitude 
and  his  reforming  policy  towards  the  law.  "That  the  reason 
which  is  the  life  of  the  law  should  be  not  natural,  but  artificial, 
I  cannot  conceive.  .  .  .  Obscure  also  are  the  words  legal  reason. 
There  is  no  reason  in  earthly  creatures,  but  human  reason." 
Now  declaring  that  " reason  is  the  common  law,"  he  asks,  "To 
what  end  were  statute  laws  ordained,  seeing  the  law  of  reason 
ought  to  be  applied  to  every  controversy  that  can  arise  ?"  The 
answer  is,  "  That  the  scope  of  all  human  law  is  peace,1  and  justice 
in  every  nation  amongst  themselves  and  defence  against  foreign 
enemies."  "  But  what  is  justice  ?"  "  Justice  is  giving  to  every 
man  his  own."  "  The  definition  is  good,  and  yet  it  is  Aristotle's. 
What  is  the  definition  agreed  upon  as  a  principle  in  the  science  of 
the  common  law  ?"  "  The  same  with  that  of  Aristotle."  "See, 
you  lawyers,  how  much  you  are  beholden  to  the  philosopher  ;2 
and  it  is  but  reason  ;  for  the  more  general  and  noble  science  and 
law  of  all  the  world  is  true  philosophy,  of  which  the  common  law 
of  England  is  a  very  little  part."  The  argument  then  proceeds 
that  it  is  "a  dictate  of  the  law  of  reason,  that  statute  laws  are  a 
necessary  means  of  the  safety  and  well-being  of  man  in  the  present 
world,  and  are  to  be  obeyed  by  all  subjects,  as  the  law  of  reason 
ought  to  be  obeyed,  both  by  King  and  subjects,  because  it  is  the 
law  of  God."  But  statute  laws  must  be  "  laws  living  and  armed." 
The  laws  are  made  by  the  king  and  he  must  have  an  army  to 

1  See  Plowden's  Report,  Stowdl  v.  Lord  Zouch,  p.  365. 

2  Soo  Sharington  v.  Strotton,  Plowdon's  Reports,  p.  303. 


THOMAS   HOBBES  213 

enforce  them.  Moreover,  the  king's  reason,  when  it  is  publicly 
upon  advice  and  upon  deliberation  declared  as  that  anima  legis ; 
and  that  summa  ratio  and  that  equity,  which  all  agree  to  be  the 
law  of  reason,  or  all  that  is  or  ever  was  law  in  England,  since  it 
became  Christian,  besides  the  Bible."  The  king,  Hobbes  declares, 
has  an  unlimited  right  to  levy  soldiers  and  money  for  the  defence 
of  his  people.  Did  not  Oliver  "  when  their  new  republic  returned 
into  monarchy  "  do  so  ?  The  king  moreover  is  "  the  legislator 
both  of  statute  law  and  of  common  law,"  since  the  king's  reason 
supplies  the  place  of  the  universal  reason  which  gives  the  common 
law.  The  king,  being  the  sole  legislator,  is  also  the  sole  judge. 
This  leads  to  a  consideration  of  the  Courts  of  justice  and  equity — 
the  former  dealing  with  "  the  positive  laws  of  the  land,"  the  latter 
with  causes  that  are  determined  by  the  law  of  reason.  The 
elaborate  description  of  the  Courts,  of  the  various  types  of  suits, 
and  of  the  relation  of  pleas  and  suits  to  the  theory  of  law  and 
morals,  is  valuable  reading,  and  shows  the  legal  training  that 
Hobbes  passed  through  at  some  time  or  another.  He  is  often 
enough  dogmatic.  He  declares  that  "it  is  very  plain  by  these 
letters-patent,  that  all  causes  temporal  within  the  kingdom, 
except  the  pleas  that  belong  to  the  exchequer,  should  be  decidable 
by  this  Lord  Chief  Justice."  The  abuses  of  legal  processes  and 
of  the  Courts  are  frankly  pointed  out.  "A  pleader  commonly 
thinks  he  ought  to  say  all  he  can  for  the  benefit  of  his  client,  and 
therefore  has  need  of  a  faculty  to  wrest  the  sense  of  words  from 
their  true  meaning,  and  the  faculty  of  rhetoric  to  seduce  the  jury, 
and  sometimes  the  judge  also,  and  many  other  arts  which  I  neither 
have,  nor  intend  to  study."  "  For  my  own  part,  I  believe  that 
men  at  this  day  have  better  learned  the  art  of  cavilling  against 
the  words  of  a  statute,  than  theretofore  they  had,  and  thereby 
encourage  themselves  and  others  to  undertake  suits  upon  little 
reason.  Also  the  variety  and  repugnancy  of  judgments  of 
common  law,  do  oftentimes  put  men  to  hope  for  victory  in  causes 
whereof  in  reason  they  had  no  ground  at  all :  also  the  ignorance  of 
what  is  equity  in  their  own  causes,  which  equity  not  one  man  in 
a  thousand  ever  studied.  And  the  lawyers  themselves  seek  not 
for  their  judgments  in  their  own  breasts,  but  in  the  precedents  of 
former  judges  :  as  the  ancient  judges  sought  the  same,  not  in 
their  own  reason,  but  in  the  laws  of  the  empire.  Another,  and 
perhaps  the  greatest  cause  of  multitude  of  suits,  is  this,  that  for 
want  of  registering  of  conveyances  of  land,  which  might  easily 


214  THOMAS  HOBBES 

be  done  in  the  townships  where  the  lands  lay,  a  purchase  cannot 
easily  be  had  which  will  not  be  litigious.  Lastly,  I  believe  the 
covetousness  of  lawyers  was  not  so  great  in  ancient  time,  which 
was  full  of  trouble,  as  they  have  been  since  in  time  of  peace, 
wherein  men  have  leisure  to  study  fraud,  and  get  employment 
from  such  men  as  can  encourage  to  contention.  And  how  ample 
a  field  they  have  to  exercise  this  mystery  in,  is  manifest  from 
this,  that  they  have  a  power  to  scan  and  construe  every  word  in 
a  statute,  charter,  feoffment,  lease,  or  other  deed,  evidence  or 
testimony." 

A  little  before  he  has  commented  on  the  number  of  statutory 
informers,  of  concealers  ("  a  number  of  cozeners,  which  the  law 
may  easily  correct "),  and  attorneys.  He  felt  with  Bacon  that 
the  law  was  a  miserable  trade.  Happily  for  him,  unlike  Bacon 
he  had  no  need  to  live  by  it  and  could  smoke  his  pipe  and  criticize 
in  peace.  He  pleads  for  an  extension  of  the  power  of  the  Court 
of  Chancery,  giving  it  the  right  to  review  the  judgments  of  the 
Court  of  Common  Pleas.  The  ideal  he  aimed  at  was  the  fusion 
of  law  and  equity  ;  to  make  all  Courts  Courts  of  Equity.  Common 
law,  he  declares,  is  in  its  nature  equity.  "  I  would  fain  know  to 
what  end  there  should  be  any  other  Court  of  Equity  at  all,  either 
before  the  Chancellor  or  any  other  person,  besides  the  judges  of 
the  Civil  or  Common  Pleas  ?  .  .  .  Besides  seeing  all  Courts 
are  bound  to  judge  according  to  equity,  and  that  all  judges  in  a 
case  of  equity  may  sometimes  be  deceived,  what  harm  is  there  to 
any  man,  or  to  the  State,  if  there  be  a  subordination  of  judges  in 
equity,  as  well  as  of  judges  in  common  law  ?"  The  judicial  busi- 
ness of  construing  written  laws  is  put  with  remarkable  force. 

"  It  cannot  be  that  a  written  law  should  be  against  reason  ; 
for  nothing  is  more  reasonable  than  that  every  man  should  obey 
the  law  which  he  hath  himself  assented  to.  But  that  is  not 
always  the  law,  which  is  signified  by  grammatical  construction  of 
the  letter,  but  that  which  the  legislature  thereby  intended  should 
be  in  force  ;  which  intention,  I  confess,  is  a  very  hard  matter  many 
t  imes  to  pick  out  of  the  words  of  the  statute,  and  requires  great 
ability  of  understanding,  and  greater  meditations  and  considera- 
tion of  such  conjuncture  of  occasions  and  incommodities,  as 
needed  a  new  law  for  a  remedy.  For  there  is  scarcely  anything 
so  clearly  written,  that  when  the  cause  thereof  is  forgotten,  may 
not  be  wrested  by  an  ignorant  grammarian,  or  a  cavilling  logician, 
to  the  injury,  oppression,  or  perhaps  destruction  of  an  honest 


THOMAS   HOBBES  215 

man.  And  for  this  reason  the  judges  deserve  that  honour  and 
profit  they  enjoy." 

The  whole  of  this  discussion  is  intended  to  demonstrate  the 
essential  relationship  of  justice  and  equity.  The  final  conclusion 
is  that  "justice  fulfils  the  law,  and  equity  interprets  the  law, 
and  amends  the  judgments  given  upon  the  same  law.  Wherein 
I  depart  not  much  from  the  definition  of  equity  cited  in  Sir 
Edward  Coke  (Inst.,  see  xxi.) ;  viz.  equity  is  a  certain  perfect 
reason,  that  interpreteth  and  amendeth  the  law  written  ;  though 
I  construe  it  a  little  otherwise  than  he  would  have  done  ;  for  no 
one  can  mend  a  law  but  he  that  can  make  it,  and  therefore  I  say 
it  amends  not  the  law,  but  the  judgments  only  when  they  are 
erroneous." 

At  this  point  the  interlocutors  turn  to  the  subject  of  crimes 
and  punishment.  His  doctrine  of  government  ever  in  view — the 
development  of  that  doctrine  is  the  ultimate  object  of  the  entire 
Dialogue — Hobbes  proceeds  to  define  treason  from  the  first  prin- 
ciples of  "  mere  natural  reason."  Treason  involves  "  a  designing 
of  a  civil  war  and  the  destruction  of  the  people."  And,  since  the 
safety  of  the  people  is  the  highest  law,  the  doing  of  any  act  that 
endangers  it  is  the  highest  crime,  namely  high  treason.  After 
discussing  treason  at  length,  he  turns  to  felony,  and  there  he 
amuses  himself  by  attacking  with  vigour  and  brilliancy  the  views 
of  Sir  Edward  Coke.  The  Lord  Chief  Justice  is  pursued  with 
an  animosity  that  is  hardly  conceivable  to  a  modern  mind.  He 
deals  in  this  spirit  with  the  doctrine  of  constructive  murder. 
"  Sir  Edward  Coke  says  (3  Inst.,  p.  56)  that  if  the  act  that  a  man 
is  doing,  when  he  kills  another  man,  be  unlawful,  then  it  is 
murder." 

"  This  is  not  so  distinguished  by  any  statute,"  replies  the  philo- 
sopher, "but  is  the  common  law  only  of  Sir  Edward  Coke.  I 
believe  not  a  word  of  it.  If  a  boy  be  robbing  an  apple-tree,  and 
falleth  thence  upon  a  man  that  stands  under  it  and  breaks  his 
neck,  but  by  the  same  chance  saveth  his  own  life,  Sir  Edward 
Coke,  it  seems,  will  have  him  hanged  for  it,  as  if  he  had  fallen  of 
prepensed  malice.  All  that  can  be  called  crime  in  this  business 
is  but  simple  trespass,  to  the  damage  perhaps  of  sixpence  or  a 
shilling.  I  confess  the  trespass  was  an  offence  against  the  law, 
but  the  falling  was  none,  nor  was  it  by  the  trespass  but  by  the 
falling  that  the  man  was  slain  ;  and  as  he  ought  to  be  quit  of  the 
killing,  so  he  ought  to  make  restitution  for  the  trespass.  But  I 


216  THOMAS  HOBBES 

believe  the  cause  of  Sir  Edward  Coke's  mistake  was  his  not  well 
understanding  of  Bracton,  whom  he  cites  in  the  margin." 

Hobbes  goes  on  to  show  that  where  the  act  is  in  itself  evidence 
of  a  felonious  purpose,  the  death  would  be  murder.  Certainly 
modern  practice  is  nearer  the  view  of  Hobbes  than  that  of  Coke. 
He  has  not  done  with  Coke  yet.  On  another  matter  the  philo- 
sopher angrily  cries  out,  "  If  his  definitions  must  be  the  rule  of 
law,  what  is  there  that  he  may  not  make  felony  or  not  felony  at 
his  pleasure  ?  But  seeing  that  it  is  not  statute  law  that  he  says, 
it  must  be  very  perfect  reason  or  else  no  law  at  all ;  and  to  me  it 
seems  so  far  from  reason,  as  I  think  it  ridiculous."  This  is  the 
attack  on  the  doctrine  that  there  can  be  no  larceny  of  growing 
crops  or  fruits  since  they  concern  the  realty. 

The  question  of  heresy  fills  much  space.  He  raises  the  question 
as  to  the  right  to  burn  heretics.  It  is  forbidden  by  statute  and 
could  not  have  been  a  custom  incorporated  in  the  common  law. 
Sir  Edward  Coke  is  therefore  again  punished  with  sufficient 
severity.  On  the  question  of  prsemunire  he  has  no  peace,  while 
Coke's  statement  that  the  general  power  of  pardoning  resides  in 
Parliament  and  not  in  the  king  (except  in  the  case  of  high  treason, 
which  is  a  crime  against  the  king)  is  met  with  the  retort  that  all 
crime  is  an  offence  against  the  king. 

The  Dialogue  turns  finally  to  the  "  laws  of  meum  and  tuum." 
Here  we  have  much  said  concerning  the  origin  and  growth  both 
of  prosperity  and  sovereignty  and  Parliament.  The  note  as  to 
the  origin  of  the  English  Parliament  is  of  value,  and  with  it  the 
Dialogue  of  the  Common  Laws  abruptly  ends. 

"  The  law  is  the  public  conscience  5>1  is  the  note  that  rings 
through  the  Dialogue.  Hobbes  desired  to  make  the  civil  law 
nearer  to  the  natural  law — to  the  law  that  has  governed  the  wills 
of  men,  the  law  that  deals  with  the  inner  man.  We  know  what 
is  right,  but  cannot  do  the  things  that  we  would.  Hobbes  desired 
the  civil  law  to  carry  the  natural  law  into  action  and  to  become 
perfect  equity.  Hobbes  had  in  mind  a  perfect  commonwealth 
and  deliberately  claimed  that  if  the  opinions  of  law  and  policy 
expressed  in  his  Human  Nature  and  De  Corpore  Politico  were 
held  by  men  the  kingdom  of  peace  would  be  at  hand  :  "  it  would 
be  an  incomparable  benefit  to  the  commonwealth,  that  every  one 
held  the  opinions  concerning  law  and  policy  here  delivered."2 

1  Leviathan,  Part  III.,  29. 

2  Dedication  to  William,  Earl  of  Newcastle. 


THOMAS   HOBBES  217 

All  perfect  laws,  he  held,  sprang  direct  from  God.  "The  law 
of  nature,  which  is  also  the  moral  law,  is  the  law  of  the  Author 
of  Nature,  God  Almighty ;  and  the  law  of  God  taught  by  our 
Saviour  Christ  is  the  moral  law." 

To  Hobbes  law  and  policy  form  a  consistent  whole  :  and  if 
considered  as  a  whole,  as  a  system  for  producing  a  stable  human 
society,  and  not  merely  in  its  religious  aspect,  it  would  not  seem 
so  vulnerable  as  it  apparently  seemed  to  the  Bramhalls  of  the 
eighteenth  century. 

Hobbes  as  a  Jurist. — It  is  impossible  to  deny  that  Thomas 
Hobbes  was  a  great  jurist  in  the  deepest  sense  of  that  term.  He 
was  not,  as  he  sat  hi  his  study  and  smoked  his  famous  pipe, 
merely  weaving  the  sand  of  words  and  ideas.  Despite  his  jest 
that  if  he  read  as  much  as  other  men  he  would  be  as  ignorant  as 
they,  he  was  a  great  student  of  books  and  records.  His  know- 
ledge of  English  law  is  evidence  enough  of  that.  He  went  to  the 
realm  of  fact  and  practice  for  his  ideas.  He  worshipped  the 
common  law  because  it  was  a  fact  and  not  a  theory,  because  it 
represented  the  law  evolved  from  the  experience  during  long  ages 
of  the  relationship  of  man  to  man.  He  was  a  modern  thinker 
in  the  best  sense  :  he  worked  from  fact  to  theory,  worked  perhaps 
imperfectly  enough,  but  raised  up  his  doctrines  of  law  and  govern- 
ment upon  the  ancient  and  current  experiences  of  the  English 
nation.  It  is  in  this  fact  that  his  work  and  thought  are  likely  to 
outlive  in  philosophic  influence  the  work  and  thought  of  Locke 
and  Rousseau, — in  so  far  as  those  thinkers  did  not  base  themselves 
on  the  far-reaching  speculations  of  Hobbes  himself.  The  influ- 
ence of  Hobbes  as  a  thinker,  indeed  as  a  prophet,  is  likely  to 
increase  rather  than  diminish,  for  he  preached  a  doctrine  of  govern- 
mental despotism  that  modern  nations  are  rapidly  realizing. 
Mr.  Jethro  Brown  in  his  recent  book  on  The  Austinian  Theory  of 
Law  says  that  "  it  may  be  noted,  however,  that  the  theory  of 
Hobbes  finds  expression  for  government  but  not  for  the  State, 
while  that  of  Rousseau  finds  an  expression  for  the  State  but  none 
that  is  adequate  for  the  government.  The  path  taken  by  Hobbes 
leads  on  to  governmental  despotism  ;  that  taken  by  Rousseau  to 
the  despotism  of  majorities.  While  Locke  may  be  said  to  have 
apprehended  the  existence  both  of  the  State  and  the  government, 
his  doctrine  surely  lends  itself  to  an  individualism  of  which  the 
final  outcome  must  be  anarchy."  Hobbes  may  not  have  chosen 
the  better  path,  but  he  certainly  chose  the  path  indicated  by  the 


218  THOMAS   HOBBES 

experience  of  his  own  day,  by  the  manner  in  which  the  laws  of 
England  developed,  and  by  the  conception  of  natural  law  which 
he  derived  from  mediaeval  jurists,  thinkers,  and  lawyers.  He 
chose  the  only  possible  method  that  would  in  a  measure  reconcile 
individualism  and  despotism.  The  despotism  of  majorities,  he 
knew  well  enough,  was  bound  to  deteriorate  into  that  "rule 
or  the  usurping  of  the  popular  or  rascall  and  viler  sort  "  called 
the  Arj/wKpariav  aTTavrwv  "  because  they  be  moe  in  number,"  of 
which  Sir  Thomas  Smith  writes  in  his  De  Eepublica  Anglorum.1 
He  looked  forward  instead  to  a  system  of  governmental  despotism, 
and  who  shall  say  that  we  have  not  attained  to  his  grim  ideal  ? 
It  is  true  that  those  who  "  be  moe  in  number  "  make  and  unmake 
governments,  and  in  some  appreciable  measure  modify  this  or 
that  political  outlook,  this  grievance  or  some  other,  the  tax  or 
rate  of  last  year  or  the  year  before.  But  the  great  governmental 
machine  grinds  on  independent  of  majorities  and  of  the  political 
sky.  Hobbes  knew  this  as  well  as  we  do.  He  knew  that  Crom- 
well, successful  in  all  else,  failed  hopelessly  when  he  touched  the 
governmental  machine.  The  history  of  national  finance  in  the 
later  years  of  the  Commonwealth  shows  that  it  is  one  thing  to 
substitute  one  rider  for  another,  and  quite  another  thing  to  inter- 
fere with  the  machinery  of  government.  Hobbes  was  far  too 
acute  an  observer  not  to  realize  that  the  end  of  government  is 
social  equilibrium,  and  that  social  equilibrium  is  impossible 
under  the  fluctuating  despotism  of  majorities  or  the  unordered 
despotism  of  the  individual. 

The  fact  that  perhaps  most  strikes  the  imagination  of  the  lawyer 
in  regarding  the  social  philosophy  put  forward  by  Thomas  Hobbes 
is  the  remarkable  fashion  in  which  he  gathered  and  dealt  with 
his  legal  material.  No  source  was  too  obscure,  no  legal  record  too 
dusty  for  him  to  use.  From  the  dryasdust  sources  of  mediae val 
philosophy,  from  the  scattered  mines  of  the  common  law  he 
drew  material  that  enabled  him  to  restate  as  part  of  an  ordered 
theory  of  government  the  law  of  nature,  and  the  application  of 
that  law  to  the  community  (then  in  a  state  of  flux)  amidst  which 
he  lived.  He  was  a  jurist  of  the  profoundest  type,  for  he  formu- 
lated laws  relating  to  society  that  have  had  an  abiding  effect 
on  society  throughout  Europe  ever  since  his  time.  His  laws  and 
conceptions  were  not  those  vivid  imaginations  of  pure  thought 
that  charm  the  philosophic  mind,  and  leave  the  world  where  they 

1  Lib.  i.,  cap.  iii. 


THOMAS   HOBBES  219 

found  it.  They  were  conceptions  founded  upon  the  closest 
observation  of  the  nature  of  the  society  amid  which  he  dwelt, 
and  of  the  evolution  of  a  practical  legal  system  through  long  ages 
in  that  society.  He  approached  the  problem  of  social  govern- 
ment in  the  same  scientific  spirit  as  that  in  which  Newton  ap- 
proached the  problem  of  the  laws  governing  the  material  universe, 
and  it  is  probable  that  his  influence  on  human  thought  in  the 
region  of  sociology  has  not  been  less  than  the  influence  of  Newton 
in  the  realm  of  applied  science.  In  a  very  real  sense  Rousseau, 
Bentham,  and  Austin  are  descendants  of  Hobbes,  while  his 
methods  are  still  the  methods  of  those  who  are  dealing  with  his 
problems  to-day.  Nor  has  his  influence  been  evanescent  in  the 
obscure  region  of  the  philosophy  of  law.  Kant  directly  or  in- 
directly owes  to  him  a  debt  not  less  great  than  the  debt  that  he 
owes  hi  another  realm  of  thought  to  David  Hume. 


RICHARD  ZOUCHE 

RICHARD  ZOUCHE,  born  at  Ansty,  Wiltshire,  in  1590,  was  the  son 
of  Francis  Zouche,  lord  of  the  manor  of  Ansty.  In  1609  he 
became  a  Fellow  of  New  College,  Oxford,  in  1617  was  admitted 
an  advocate  of  Doctors'  Commons,  in  1619  proceeded  to  the 
degree  of  D.C.L.,  and  in  the  following  year  succeeded  John 
Budden,  the  successor  of  Albericus  Gentilis,  as  Regius  Professor 
of  Civil  Law  at  Oxford.  Soon  afterwards  he  married,  and  resigned 
his  fellowship.  In  1623  he  entered  himself  as  a  fellow-commoner 
at  Wadham  College,  and  two  years  later  was  appointed  Principal 
of  St.  Alban  Hall.  He  was  twice  elected  a  member  of  Parliament 
for  Hythe  (1621  and  1624),  and  in  1632  became  Chancellor  of  the 
Diocese  of  Oxford. 

From  that  date  his  activities  were  shared  between  legal  practice 
in  London  and  academic  engagements  at  his  University,  where  he 
also  took  a  prominent  part  in  the  codification  of  its  statutes 
(1629-1633).  Finally,  in  1641,  he  was  appointed  to  a  judgeship  of 
the  High  Court  of  Admiralty. 

At  the  time  of  the  Civil  War  his  sympathies  were  with  the 
Royalists,  and  after  some  opposition  he  was  obliged  to  submit  to 
the  parliamentary  visitors,  who  sought  to  effect  a  reformation  of 
the  University.  Zouche  was  removed  from  his  judgeship  when 
Cromwell  came  to  power,  though  he  was  a  little  later  appointed 
one  of  the  judges  to  decide  the  famous  case  of  Don  Pantaleon  Sa. 
The  remainder  of  his  life  was  spent  mostly  at  Oxford,  and  during 
this  tune  he  does  not  appear  to  have  gained  the  favour  of  either 
of  the  political  parties.  On  the  accession  of  Charles  II.  he  was 
restored  to  the  judgeship  of  the  Court  of  Admiralty,  but  died  about 
a  month  later. 

His  contemporaries  undoubtedly  appreciated  his  excellent 
qualities  as  a  man,  his  high  distinction  as  a  scholar,  and  his 
learning  and  authority  as  a  writer.  Of  his  Elementa  Juris- 
prudentice,  Bishop  Sanderson  said  that  "  no  man  could  read  it  too 

220 


RICHARD   ZOUCHE  221 

often  or  commend  it  too  much."  Anthony  Wood1  gives  a 
delightful  portrait  of  him  :  "  He  was  an  exact  artist,  a  subtile 
logician,  expert  historian  ;  and  for  the  knowledge  in,  and  practice 
of,  the  civil  law,  the  chief  person  of  his  time,  as  his  works,  much 
esteemed  beyond  the  seas  (where  several  of  them  are  reprinted), 
partly  testify.  ...  As  his  birth  was  noble,  so  was  his  behaviour 
and  discourse  ;  and  as  personable  and  handsome,  so  naturally 
sweet,  pleasant  and  affable.  The  truth  is,  there  was  nothing 
wanting  but  a  forward  spirit  for  his  advancement,  but  the  inter- 
ruption of  the  tunes,  which  silenced  his  profession,  would  have 
given  a  stop  to  his  rise  had  he  been  of  another  disposition." 

The  Writings  of  Zouche. — The  books  Zouche  published 
indicate  a  remarkable  versatility  in  range  of  subjects,  as  well  as  a 
considerable  volume  of  work.  Like  his  countrymen  Selden  and 
Bacon,  to  name  no  others,  he  was  in  some  respects  a  product  of 
the  Renaissance,  an  age  in  which  writers  and  thinkers  were  loth 
to  limit  their  activity  to  work  of  specialization,  but  whose  thirst 
for  knowledge  led  them  to  wider  fields,  and  to  seemingly  recondite 
or  strange  subjects.  The  publications  of  Zouche  comprise  a 
poem,  a  play,  a  book  of  miscellaneous  maxims,  handbooks  for 
university  disputations,  and  works  of  a  more  polemical  nature  ;2 
but  his  most  important  production  is  a  systematic  survey  of  the 
whole  field  of  jurisprudence,  followed  by  a  more  detailed  examina- 
tion of  its  various  branches.  Thus  the  basis  of  his  writings  on 
law  is  the  Elementa  Jurisprudentice,  largely  founded  on  Roman 
Law  both  in  method  and  subject-matter.  He  introduces  the 
twofold  division  of  Rights  (Jus)  and  Remedies  (Judicium),  and 
adopts  this  method  systematically  and  logically — if  somewhat 
automatically — in  his  subsequent  exposition  of  the  various 
departments  of  laiw,  dealt  with  in  a  regular  series  of  treatises 
(descriptiones) — '"feudal,"  "sacred,"  "maritime,"  "military," 
and  "  fecial  "  law.  Of  all  these  dissertations,  those  dealing  with 
questions  of  international  law  are  the  most  important — indeed, 
his  standing  as  an  eminent  jurist  is  mainly  due  to  them  :  Juris 
et  judicii  fecialis  sive  juris  inter  gentes  et  qucestionum  de  eodem 
explicatio  (Oxford,  1650),  being  a  concise  outline  of  a  large  body 
of  international  law,  and  Solutio  qucestionis  veteris  et  novce,  sive  de 
legati  delinquentis  judice  competente  dissertatio3  (Oxford,  1657), 

1  Athence  Oxonienses. 

2  For  a  complete  list  of  his  works  see  Professor  Holland's  article  on  Zouche 
in  the  Dictionary  of  National  Biography. 

3  These  two  works  will  henceforth  bo  referred  to,  respectively,  as  De 
jure  inter  gentes  and  Solutio  qucestionis. 


222  RICHARD   ZOUCHE 

which  is  a  fuller  treatment  of  one  of  the  special  matters  of  the 
preceding  work,  viz.  the  position  of  ambassadors  in  the  law  of 
nations.  The  present  essay  is  concerned  almost  exclusively  with 
Zouche  as  an  international  jurist. 

To  obtain  a  juster  and  more  accurate  appreciation  of  Zouche's 
position  it  will  be  well  to  consider  briefly  the  work  of  his  English 
predecessors  in  the  field  of  international  law,  and  the  nature  of 
interstatal  relationships  at  the  time  he  wrote. 

B  elation  of  Zouche  to  his  English  Predecessors. — The  early 
development  of  international  law  was  a  laborious  process,  the 
main  counteracting  agencies  to  its  quicker  advancement  being  the 
practices  of  feudalism  and  the  dominating  influence  of  the 
Church.  Towards  the  close  of  the  fifteenth  century,  and  in  the 
early  part  of  the  sixteenth,  we  see  the  rise  of  great  States,  and, 
generally,  more  distinct  lines  of  demarcation  between  them. 
The  Pope's  political  power  was  largely  overthrown ;  and  the 
internal  organization  and  external  relationships  of  States  are  to 
some  extent  systematized  under  the  guidance  of  the  principles 
of  sovereignty  and  autonomy.  Thus  the  practices  of  war  became 
somewhat  regularized,  and  with  the  establishment  and  mainten- 
ance of  standing  armies  a  body  of  rules  relating  to  military 
discipline  grew  up  ;  further,  through  the  increased  interstatal 
communication  many  usages  concerning  ambassadors  and  envoys 
came  to  have  legal  force.  At  the  head  of  this  movement  are  to 
be  found  Spam,  France,  and  England.  In  Spain,  Alfonso  IX. 
drew  up  the  Siete  Partidas,  a  manual  of  military  laws,  to  which 
Zouche  occasionally  refers ;  in  Italy,  various  treatises  are  pro- 
duced— e.g.,  by  Gratian  (the  Decretum),  Thomas  Aquinas,  Bar- 
tolus,  Baldus,  and  others  ;  in  France  we  find  already,  at  the  end 
of  the  fourteenth  century,  UArbre  des  Batailles  of  Honore  Bonet ; 
in  Germany  early  attempts  at  similar  disquisitions  are  made  by 
Gabriel  Biel  in  his  Collectarium.1 

In  England  the  unification  of  the  country  began  with  the 
Norman  Conquest ;  some  two  centuries  later  the  principle  of 
Parliamentary  representation  was  firmly  established ;  adminis- 
tration of  justice  was  organized  ;  to  Henry  VII.  is  due  the 
innovation  of  permanent  embassies  ;  under  Henry  VIII.  foreign 
politics  occupied  much  attention,  canon  and  Roman  law  were 
the  predominant  systems.  Before  this,  Oxford  had  had  a  school 

1  Cf.  E.  Nys,  Notes  pour  scnnr  a  CHistoire  litteraire  et  dogmatique  du  Droit 
International  m  Angletcrrc  (Bnixollos,  1888). 


RICHAED  ZOUCHE  223 

of  law ;  and  with  the  decline  of  canon  law  at  the  Reformation, 
Henry  VIII.  founded  chairs  of  Roman  law  both  at  Oxford  and 
Cambridge ;  and  at  the  time  of  Elizabeth  the  institution  of 
Doctors'  Commons  was  often  consulted  in  regard  to  international 
affairs.  Already  in  the  fifteenth  century  in  England  writers 
issued  important  original  monographs,  or  adaptations  and  trans- 
lations. Nicholas  Upton1  followed  Bartolus2  in  his  discussions  on 
knighthood,  and  on  matters  of  war  refers  to  Gratian  and  Johannes 
de  Legnano  ;3  he  deals  with  duels  and  reprisals,  on  which  latter 
question  he  cites  the  authority  of  Bartolus,  Guy  de  Baiso,  Baldus, 
and  others  ;  and  finally  as  to  prisoners  adopts  the  severe  measures 
hi  the  doctrine  of  Baldus.  In  1475  appeared  anonymously  The 
Boke  of  Noblesse,  which  inquires  "  whether  for  to  make  werre 
uppon  christen  bloode  is  lawfulle,"  and  follows  the  authority  of 
Honore  Bonet's  work  UArbre  des  Batailles,  which  was  afterwards 
translated  by  Sir  Gilbert  Hay.  Bonet  held  that  war  is  primarily 
a  relation  between  State  and  State.  In  the  next  century  we  get 
the  great  work  of  Albericus  Gentilis.4  A  new  phase  of  literary 
activity  was  manifested  in  the  dissertations  contained  in  the 
general  memoirs  of  Government  officers,  and  embodied  as  answers 
to  particular  questions  proposed  to  them  in  their  official  capacity — • 
e.g.,  Valentine  Dale's  answer  as  to  wars  which  have  commenced 
illegally  and  without  sufficient  cause  ;5  again,  his  opinion  of  a  book 
in  which  Don  Antonio  defended  his  claim  to  the  Portuguese 
throne  ;  and  other  matters  relating  to  piracy.  The  case  of  Leslie, 
Bishop  of  Ross,  was  referred  to  David  Lewis,  Valentine  Dale, 
William  Drury,  William  Aubrey,  and  Henry  Jones,  who  were  all 
advocates  of  Doctors'  Commons  ;  and  in  the  case  of  Mary  Stuart, 
Dale  was  consulted,  and  drew  up  a  written  opinion.6  There  were 
besides,  before  Zouche,  a  large  number  of  English  writers  who 
contributed  fuller  treatises  on  special  subjects — e.g.  Matthew 
Sutcliffe,  William  Fulbecke,  William  Welwood,  John  Selden, 
Richard  Bernard,  and  Sir  John  Boroughs,  who  will  be  referred  to 
below  in  connection  with  the  different  divisions  of  Zouche's  work. 
Zouche  has  been  claimed  by  some  writers  to  be  the  second 
founder  of  the  law  of  nations,  mainly,  it  may  be,  by  virtue  of  his 

1  De  studio  militari  libri  quatuor.  2  De  insignis  et  armis. 

3  De  bello,  de  represaliis,  et  de  duello. 

4  De  legationibus  libri  tres  (London,  1585) ;  De  jure  belli  (London,  1588-89). 
8  Calendar  of  State  Papers  :   Domestic  Series  of  the  Reign  of  Elizabeth, 

1581-1590. 

6  Of.  Strype,  Annals  of  the  Reformation,  Hi.,  pt.  i.,  p.  530  ;  pt.  n.,  p.  398. 


224  RICHARD  ZOUCHE 

great  terminological  innovation — jus  inter  gentes — to  replace  the 
older,  more  ambiguous,  though  universally  employed  expression, 
jus  gentium.  Hence  he  is  often  referred  to  in  writings  on  inter- 
national law  in  connection  with  his  new  formula,  which  seemingly 
indicates  a  new  point  of  departure,  and  a  new,  a  more  modern 
conception  of  fundamental  doctrine.  But  of  his  views  in  general 
little  has  been  said  by  writers.  By  adopting  the  positive  method 
he  at  once  shows  himself  to  be  in  affinity  with  the  English  school. 
He  is  largely  concerned  with  the  citation  of  examples  and  pre- 
cedents j1  he  does  not  undertake  a  scientific  development  of 
doctrine.  Perhaps,  having  regard  to  the  nature  of  the  time  in 
which  he  lived,  the  unsettled  affairs,  the  contentious  international 
politics,  and  more  or  less  precarious  interstatal  relationships,  he 
was  too  wise  to  develop  doctrine,  to  rush  to  abstract  generaliza- 
tions, and  to  theorize  in  a  priori  principles  which  could  not  be 
made  to  fit  the  actual  conditions,  especially  so  in  a  strikingly 
transitional  epoch.  The  English  school  is  eminently  practical ; 
it  considers  policy  and  rules  of  law  in  relation  to  the  particular 
environment  and  to  the  demands  of  necessity.  Thus,  Selden's 
Mare  clausum,  a  reply  to  Grotius'  Mare  liberum,  and  his  De  jure 
naturali,  adopt  the  positive  method  almost  entirely.  Selden's 
method  is  characterized  by  M.  Scelle  as  an  "  aboutissement  brutal 
de  la  doctrine  positive."2  The  same  positive  tendency  is  likewise 
manifested  in  the  great  philosophical  writers,  Bacon,  Locke,  and 
Hobbes,  though  in  other  respects  there  are  profound  differences 
between  them.  There  had  for  some  time  been  at  Oxford  an 
influential  juristic  school ;  apart  from  foreigners,  like  Gentilis, 
who  from  time  to  time  taught  there,  there  was  a  considerable 
group  of  writers,  of  whom  may  be  mentioned  Valentine  Dale,  Sir 
Julius  Caesar,  William  Fulbecke,  William  Welwood  ;  and  after 
these  came  Zouche,  to  sum  up,  as  it  were,  the  whole  school.  A 
more  or  less  similar  spirit  pervaded  the  work  of  all  of  them  ;  all 
emphasized  the  importance  of  usages  and  practices,  of  treaties, 
conventions,  and  of  the  diverse  phenomena  consequent  on  political 
development.  In  the  more  theoretical  portion  of  their  work, 
whenever  they  attempted  such  treatment,  the  Roman  law  was 
called  in  to  provide  authority  and  furnish  analogies  ;  but  recent 
events  were  at  no  time  disregarded. 

1  "  On  reconnait  a  ce  signo  1'un  dos  reprdsentants  do  la  doctrine  posi- 
tive," Fondatenrs  du  droit   international  (Paris.  1904) ;    article   on   Zouche 
by  G.  Scollo,  p.  325. 

2  Ibid,  p.  320. 


2OUCHE  225 

Zouche  and  the  Roman  Law, — The  Roman  law  has  ever 
been  an  invaluable  aid  in  the  development  of  international  juris- 
prudence, not  to  mention  the  municipal  law  of  modern  States. 
Indeed,  it  is  in  many  respects  the  very  foundation  of  the  law  of 
nations.  There  are  very  few  writers  and  lawyers  who  have  not 
been  profoundly  influenced  by  it.1  The  Church  had  promoted 
the  study  and  application  of  the  Justinian  jurisprudence.  It  was 
ranked  with  the  canon  law  by  the  Popes  and  the  pontifical  Courts. 
In  Italy  the  study  of  Roman  law  had  long  been  maintained  ;  the 
school  of  Bologna  and  the  Glossators  (1100-1260)  had  European 
fame  ;  and  there  was  further  a  great  revival  during  the  Italian 
Renaissance,  which  soon  extended  to  other  countries.  In  France 
rules  of  Roman  law  had  predominated  over  Germanic  laws  and 
customs,  and  early  in  the  twelfth  century  the  Justinian  Code  was 
there  translated.  The  manual  of  Alfonso  IX.  of  Spain — the 
Siete  Partidas — was  to  a  large  extent  founded  on  the  Roman  law. 
German  students  attended  the  schools  of  Italy  as  early  as  the 
twelfth  and  thirteenth  centuries,  and  in  the  sixteenth  century 
there  were  many  famous  foreign  teachers  in  Germany.  In 
Holland  a  school  of  jurists  arose  with  the  foundation  of  the 
university  of  Leyden  in  1575 ;  and  in  the  following  century 
flourished  men  like  Grotius,  Vinnius,  Huber,  and  Van  Leuwen. 
As  for  England,  Selden  states  that  the  Justinian  law  was  intro- 
duced from  Bologna  in  the  twelfth  century.  From  the  arrival  of 
Vacarius,  invited  by  Archbishop  Theobald  in  the  reign  of  Stephen 
to  teach  Roman  law  at  Oxford,  down  to  the  death  of  Edward  I., 
the  civil  law  exerted  much  influence  in  England .  Bracton's  direct 
indebtedness  to  it  is  as  great  as  his  esteem  of  it.2  In  Fleta  a  good 
deal  of  the  substance  of  the  Institutes  is  adopted.  Similarly, 
Coke's  recognition  of  Bracton  at  the  same  time  implies  an  accept- 
ance of  the  Roman  law.  Various  causes  operated  to  extend  the 
application  of  this  foreign  law,  such  as  the  influence  of  the 
universities,  notably  the  Oxford  school  of  civil  law ;  the  recog- 
nition of  Roman  law  in  ecclesiastical  Courts  ;  the  growth  of  com- 
mercial intercourse  and  acquisition  of  property,  through  which 
the  defects  and  omissions  in  the  common  law  had  to  be  remedied  ; 
and  finally  the  intrinsic  nature  of  the  Justinian  legislation  itself, 

1  Cf.  the  observations  of  Bodin :  De  la  Republique  (Paris,  1577),  1.  v., 
c.  vi. ;  Leibnitz,  Opera,  t.  iv.,  p.  254  ;  Sir  Robert  Wiseman,  The  Law  of  Laws, 
or  Excellency  of  the  Civil  Law  above  all  other  Human  Laws  Whatsoever  (London, 
1686),  p.  110. 

2  Cf.   C.    Guterbock:    Henricus   de   Bracton  und  sein    Verhaltniss  zum 
Komischen  Rechte  (Berlin,  1862) ;  translated  by  B.  Coxe  (Philadelphia,  1866). 


226  RICHARD  ZOUCHE 

the    comprehensiveness    of   its    subject-matter,    the    universal 
applicability  of  its  principles  and  generalization. 

The  influence  of  the  Roman  law  on  Zouche  is  manifested 
throughout  his  work.  His  standpoint,  his  divisions,  his  classifica- 
tions, his  conceptions,  are  greatly  affected  thereby.  Thus  he 
divides  the  law  of  peace  and  of  war  each  into  four  categories — 
status,  dominium,  debitum,  delictum.  The  Justinian  rights  and 
obligations  of  citizens  are  transferred  to  the  case  of  States,  and 
immediate  application  and  inference  of  principles  are  made  just  as 
though  the  conditions  were  alike  in  the  two  cases.  Zouche  was  not, 
of  course,  alone  in  such  somewhat  undiscriminating  imitation  ;  his 
masters  Gentilis  and  Grotius  had  done  the  same.  Thus,  in  the 
Mare  liberum,  Grotius  speaks  of  persons  and  goods,  contracts  and 
actions,  possession  and  transference  of  property,  as  though  he 
were  dealing  with  a  house  or  a  horse.1  But  in  Zouche  a  certain 
self-emancipation  from  the  tradition  is  manifested,  inasmuch  as 
he  gives  many  recent  or  contemporary  examples  of  practice — 
and  this  Grotius  does  not  do. 

Relation  to  His  Age. — Bynkershoek  has  often  been  greatly 
praised  for  his  use  of  more  modern  instances  ;  but  Zouche  adopted 
this  practice  long  before  ;  indeed,  the  subsequent  growth  of  inter- 
national law  is  greatly  indebted  to  his  bold  innovation — a  feature 
which  cannot  be  too  much  emphasized.  It  is  true  that  this 
practice  is  already  found  in  Gentilis  ;  but  Zouche  was  the  first  to 
adopt  it  systematically  and  persistently  in  the  entire  range  of  his 
work.  Henceforth  the  law  of  nations  acquires  a  vitality  and 
elasticity  which  are  absent  in  the  earlier  scholastic  methods  with 
their  undiscriminated  accumulations  of  learning.  Zouche,  how- 
ever, unlike  Bynkershoek,  failed  to  draw  definite  inferences  from 
his  modern  examples.  He  analyzes  them,  states  the  issue  clearly, 
gives  arguments  for  and  against  (much  in  the  same  way  as  dis- 
putations were  conducted  in  his  university),  but  usually  avoids 
giving  his  own  opinion  in  favour  of  the  one  side  or  the  other,  or 
suggesting  any  other  course.  It  cannot  be  said  that  this  attitude 
was  due  to  judicial  incapacity  ;  it  was  rather  due  to  his  aversion 
to  dogmatic  finality  in  view  of  the  stirring  flux  of  events  in  Europe 
at  the  time  he  wrote,  his  recognition  of  the  then  transitory 

1  Nowadays,  a  similarly  false  analogy  is  sometimes  made  by  writers 
(seduced  by  certain  superficial  likenesses  and  indifferent  to  fundamental 
differences)  in  considering  the  evolution  of  a  State  or  a  nation  in  the  same  way 
as  they  would  consider  the  organic  development  of  an  individual,  and  the 
economic  and  intellectual  organization  of  his  life. 


RICHARD  ZOtTCHE  227 

character  of  international  relationships,  the  reconstruction  of 
national  polity,  and  the  inevitable  transformation  of  rules  of 
practice  pertaining  thereto. 

The  Thirty  Years'  War,  beginning  as  a  strife  of  Bohemian  rebels 
against  Ferdinand  the  Hapsburger,  grew  into  the  great  conflict 
between  Roman  Catholicism  and  Protestantism,  between  im- 
perialism and  territorial  sovereignty.    In  the  sphere  of  inter- 
national law  the   consequences  were  far-reaching.    From  the 
fifteenth  century  to  the  middle  of  the  seventeenth,  the  worst 
features  of  a  Machiavellian  diplomacy  prevailed,  and  almost 
shattered    the    very   foundations    of    international   law.     The 
interests  of  monarchs  were  then  by  no  means  identified  with  those 
of  their  countries  ;  treaties  were  violated  or  modified  at  the 
pleasure  and  for  the  convenience  of  the  signatory  States.     But 
with  the  decline  of  feudalism  in  the  sixteenth  century,  the  gradual 
overthrowing  of  spiritual  authority,  the  unification  of  States, 
their  assertion  of  autonomy,  the  increasing  body  of  writings  by 
jurists  and  publicists,  the  way  was  prepared  for  the  establishment 
of  the  principles  of  the  Peace  of  Westphalia,  which  procured  an 
international  system  of  independent  States,  with  an  exclusive 
territorial  jurisdiction  for  each,  and  by  a  recognition  of  the 
principle  of  equilibrium  of  the  greater  States  laid  the  very  basis 
of  modern  international  law.    During  and  after  the  Thirty  Years' 
War  certain  Powers  had  been  quickly  developing  their  maritime 
resources,  which  were  further  promoted  by  colonial  expansion. 
Questions  of  neutrality  and  of  the  freedom  of  the  seas  were 
raised  ;  the  exact  status  of  ambassadors  and  envoys  was  ex- 
amined ;  matters  of  military  discipline  and  of  naval  warfare  were 
discussed  ;  and  generally  the  eminently  practical  and  universally 
utilitarian  character  of  international  law  was  grasped  once  for  all. 
The  affinity  of  Zouche  to  this  movement  will  be  seen  when  we 
consider  more  closely  the  various  departments  of  his  work ;  and 
in  this  connection  it  will  be  well  to  note  that  the  Peace  of  We  st- 
phalia  was  signed  in  1648,  and  that  in  1650  appeared  the  first 
edition  of  his  principal  work,  the  De  jure  inter  gentes. 

Zouche's  Method  and  General  Treatment. — Just  as  all  his 
works  adopt  one  method  of  exposition  and  arrangement,  so  the 
whole  of  his  system  is  based  on  one  central  principle,  one  originat- 
ing factor — the  rationale  of  human  relationship,  the  ratio  coni- 
munionis  humance.1  This  is  the  root  idea  of  his  Elementa 

1  See  preface  to  De  jure  inter  gentes. 


228  RICHARD  20TTCHE 

Jurisprudentice,  and  his  subsequent  writings  are  further  develop- 
ments and  extended  applications  of  this.  First  he  deals  with  the 
general  principles  of  law  (juris  et  judicii  principia  generalia) 
appertaining  to  the  communio  in  genere,  then  with  the  relation- 
ships between  private  persons  (communio  quce  inter  personas 
privates  intercedit),  between  the  sovereign  and  his  subjects 
(communio  quce  privatis  cum  principibus  intercedit) ;  after  these 
he  devotes  treatises  to  communiones  speciales — e.g.  sacra,1  mili- 
taris*  maritima,3  feudalis  ;4  and  finally  he  takes  up  in  his  most 
considerable  work5  the  relationships  subsisting  between  nations, 
eorum  quce  ad  communionem,  quce  inter  diversos  principes  aut 
populos  intercedit,  conducunt.  In  all  these  dissertations  he  con- 
siders first  the  Jus  (rights),  the  propositions  of  law  generally 
accepted,  quce  sunt  minus  dubitati  juris,  then  the  Judicium 
(remedies),  comprising  questions  which  give  rise  to  controversy, 
ea  quce  videntur  juris  controversi.6  In  conformity  with  this  plan, 
he  takes  up,  in  his  work  on  the  law  of  nations,  first  the  Jus, 
under  the  twofold  aspects  of  peace  and  war.  After  a  preliminary 
consideration  of  the  definition  and  principal  sources,  he  sub- 
divides questions  of  peace  into  those  relating  to  (1)  status,  relation 
of  sovereign  and  subjects,  relative  position  of  states  ;  (2)  dominium, 
possession  and  how  acquired  ;  (3)  debitum,  envoys,  ambassadors, 
treaties,  alliances  ;  (4)  delictum  ;  and,  again,  having  examined  the 
lands  of  war  and  whether  declaration  is  necessary,  he  classifies 
questions  of  war  likewise  under  (1)  status,  kinds  of  military  power, 
kinds  of  enemies  ;  (2)  dominium,  capture,  postliminium  ;  (3)  debi- 
tum, military  conventions,  access,  truce,  treaty  of  peace,  hostages  ; 
(4)  delictum,  breaking  military  conventionSi  irregularities  in 
warfare,  etc.  Then  comes  the  second  portion  of  the  book,  the 
Judicium.  After  touching  on  the  settlement  of  disputes,  and  on 
questions  of  jurisdiction,  he  again  deals  first  with  peace  :  (1)  status, 
sovereignty,  relation  of  sovereign  to  subjects,  nationality ; 
(2)  dominium,  theory  of  occupation,  territorial  seas  ;  (3)  debitum, 
precedence  of  princes,  ambassadors,  promises  of  a  sovereign, 
whether  a  successor  is  bound  by  previous  treaties  ;  (4)  delictum, 
whether  an  offence  against  a  subject  is  an  offence  against  his 
sovereign,  extradition,  intervention,  requisition  of  foreign  vessels, 
violation  of  treaties.  Lastly  comes  war,  with  introductory  con- 

1  Descriptio  juris  et  judicii  sacri.  2  Descriptio  juris  et  judicii  militaris. 

3  Descriptio  juris  et  judicii  maritimi.  4  Descriptio  juris  et  judicii  feudalis. 

6  Descriptio  juris  et  judicii  inter  gentes.        6  See  preface  to  De  jure  inter  gentes. 


RICHARD   ZOTJCHE  229 

sideration  as  to  its  legitimacy,  who  may  undertake  it,  urgency  of 
pacific  settlement ;  then,  as  before  :  (1)  status,  who  may  be  con- 
sidered an  enemy,  domicile ;  (2)  dominium,  how  property  is 
acquired,  maritime  captures,  neutral  goods  on  enemy  vessels, 
contraband,  right  of  visit ;  (3)  debitum,  single  combats,  prisoners, 
ransoms,  pursuing  the  enemy  on  neutral  territory,  when  an 
ambassador  may  be  arrested,  conditions  of  capitulation  by 
generals,  treaty  of  peace  made  by  them,  treaty  made  in 
captivity,  hostages,  truce,  safe-conduct ;  (4)  ddictum,  whether 
declaration  is  necessary,  hostages,  whether  lex  talionis  is 
justifiable,  offensive  practices  in  war  as  to  prisoners,  women, 
sacred  places. 

The  various  matters  under  Jus  he  considers  more  or  less 
categorically,  those  under  Judicium  he  puts  in  the  form  of 
questions.  He  offers  no  explicit  solutions  to  these,  claiming  only 
to  set  side  by  side  diverse  opinions  and  many  examples  of  fact 
and  precedent,  from  which  he  hopes  the  reader  will  be  able,  by  a 
process  of  inductive  or  Socratic  reasoning,  to  form  his  own 
conclusions.1  His  citation  of  authorities  is  extensive  and  syste- 
matic, and  in  every  case  he  gives  the  exact  reference.  Above  all 
publicists  and  jurists,  "  auctores  historico  jure  periti,"  his  guides 
are  Gentilis  and  Grotius  ;  but  apart  from  ancient  writers  and  the 
Digest,  he  frequently  refers  to  Bodin,  Conradus  Brunus,  Pas- 
chalius,  Besoldus,  Ayala,  Bartolus,  Hotman,  Camden,  Selden, 
Welwood,  and  many  others,  and  mentions  also  the  laws  of  Rhodes, 
the  Siete  Partidas  of  Alfonso  IX.,  and  the  Consolato  del  Mare. 
He  is  not,  however,  a  servile  follower  of  Grotius :  in  the  first  place, 
as  has  been  already  pointed  out,  he  deals  with  peace  before 
war,  emphasizing  the  prior  interests  of  peace  ;  and,  secondly, 
he  attaches  great  importance  to  contemporary  facts  and 
events. 

Definition  and  Source  of  International  Law. — He  defines 
international  law  as  that  which  controls  the  relationships  between 
heads  of  States  or  sovereign  peoples,  either  in  peace  or  in  war. 
The  adoption  of  this  law  is  due  to  the  force  of  custom 
operating  in  conformity  with  reason,  and  it  is  in  accordance 
with  its  principles  and  behests  that  nations  are  distinguished, 
kingdoms  founded,  commerce  established,  and  war  intro- 

1  As  he  says  in  his  preface,  loc.  cit.,  "  A  statuendp  quicquam  pro  sua 
sententia  abstinuit,  consultius  Acadomiae  Socraticae  institutam  imitari  ratus, 
quse  post  causas  ot  rationos  allatas  et  quid  in  unaquaquo  parto  dici  possit 
expositum,  audentium  judicium  integrum  atquo  liberum  reliquit." 


230  RICHARD   ZOUCHE 

duced.1  This  definition  and  the  fundamental  notions  underlying 
it  constitute  an  advance  of  the  greatest  importance.  He  con- 
trasts with  it  the  Roman  conception  of  the  jus  gentium,  and  the 
definition  of  Gaius.2  Tracing  the  sources,  he  briefly  refers  to  the 
Roman  fecial  law  as  having  been  based  on  the  jus  naturale,  then 
adds  to  this  two  other  sources — the  law  arising  from  customs,  and 
that  arising  from  consent,  as  evidenced  in  treaties,  pacts,  alliances, 
leagues,  conventions,  etc.3 

In  his  Solutio  gucestionis,  the  later  work  on  the  legal  position  of 
the  ambassador  and  his  suite,  he  states  that  the  privileges  of 
ambassadors  are  based  not  on  the  law  of  nature  but  on  the  consent 
of  nations — i.e.,  on  the  jus  gentium  voluntarium,  arbitrary  law 
built  up  as  occasion  and  circumstance  demand  ("  usu  exigente  et 
humanis  necessitatibus  ").4  Natural  law  and  arbitrary  law  may 
agree  or  may  conflict ;  where  there  is  a  conflict,  universal  abstract 
principles  may  have  to  yield  to  narrower  practical  interests. 
Similarly,  Selclen,  in  his  Mare  clausum  (1635),  and  in  his  De  jure 
naturali  et  gentium  (1650)  (the  latter  published  in  the  same  year 
as  Zouche's  De  jure  inter  gentes},  distinguishes  between  natural 
law  and  voluntary  law  ;  the  latter  he  terms  jus  gentium  inter- 
veniens,  and  also  jus  gentium  secundarium.6  "  Interveniens  autem 
jus  gentium  dicimus  quod  non  ex  communi  pluribus  imperio  sed 
interveniente  sive  pacto  sive  morum  usu  natum  est,  et  jus  gentium 
secundarium  fere  solet  indigetari."6 

(a)  International  Law  in  Time  of  Peace.7 — Zouche  first  dis- 
cussed certain  general  questions  (with  numerous  references  to 
Aristotle,  Pomponius,  St.  Augustine)  :  whether  it  is  possible  and 
desirable  to  be  at  peace  with  everybody,  for  example  with  bar- 
barians ;  whether  greater  advantages  are  produced  by  peace  or 
war  ;  whether  we  ought  to  prefer  an  unjust  peace  to  a  just  war. 

1  "  Jus  inter  gentes  est,  quod  in  communione  inter  diversos  principos, 
vel  populos  penes  quos  est  imperium,  usurpatur.     Quod  scilicet,  moribua 
rationi  congruis  inter  gontes  plerasque  receptura  est,  et  id  in  quod  gentos 
singulse  inter  se  consentiunt,  et  observatur  inter  oas  quibuscum  pax  ost  et 
inter  eas  quibuscum  bellum  "  (Part  I.,  s.  1). 

2  Part  I.,  8.1,  pp.  1,2. 

"  Deinde  prseter  mores  communes  pro  Jure  otiam  inter  gontos  habendum 
ost,  in  quod  gentes  singulae  cum  singulis  inter  se  consentiunt,  utpote  per 
pacta,  conventionos  et  fcedera,  cum  communis  roipublicse  sponsio  legom 
coastituat,  et  populi  univorsi,  non  minus  quam  singuli  suo  consensu  obli- 
gontur  "  (Part  I.,  s.  1,  p.  2).  *  G.  i. 

5  This  expression  he  borrowed  from  Vasquez. 

3  Mare  daumm,  lib.  i.,  c.  3. 

\  It  is  not  intended  to  follow  hero  Zouche's  order  and  arrangement  of 
subject-malt  or.  but  it  will  bo  more  profitable  to  treat  it  under  the  two  heads 
of  Peace  and  War. 


RICHARD  ZOUCHE  231 

etc.  Peace,  defined  as  ordered  concord  (the  "  ordinata  concordia" 
of  St.  Augustine),  is  the  normal  condition  of  nations,  and  its 
interests  predominate.  It  is  of  two  kinds  :  pax  moralis,  between 
superiors  and  inferiors — e.g.,  between  the  head  of  a  family  and 
the  other  members  ;  pax  civilis,  between  equals — e.g.,  between 
cities  or  States.  He  admits,  however,  an  inequality  de  facto 
between  the  existing  States,  and  this  condition  points  to  the  urgent 
necessity  of  maintaining  peace,  for  the  purpose  of  general  inter- 
course, hospitality,  and,  above  all,  commerce.  Bodin  had  indi- 
cated a  certain  precedence  amongst  sovereigns  ;  thus,  after  the 
Pope  he  placed  the  Emperor,  and  then  the  French  sovereign, 
who  had  recently  defeated  the  claims  of  Spain.1 

Territorial  Sovereignty,  and  State  Policy. — Does  the  fact  of 
contracting  an  unequal  treaty  or  accepting  protection  modify  the 
status  of  a  prince  or  State  ?  According  to  Proculus,  Zouche 
points  out,  protection  does  not  mean  dependence,  and  the  liberty 
of  the  de  facto  subordinate  State  must  be  respected.  Sylla  is 
quoted  to  the  same  effect :  "  clientes  sunt  sub  patrocinio,  non 
sub  ditione."  The  case  of  Mary  Stuart  suggested  the  question 
whether  a  sovereign  on  his  own  territory  had  power  over  another. 
For  the  negative  he  points  out  that  Mary  was  a  free  and  inde- 
pendent princess,  and  could  not  be  guilty  of  lese-majeste  ("in 
majestatem  peccare  non  posset  "),2  since  she  was  the  equal  of 
Elizabeth  ;  for  the  affirmative,  that  there  cannot  be  in  one 
kingdom  two  independent  princes,  and,  besides,  the  equal  may 
submit  to  the  judgment  of  his  equal  either  by  express  or  by  tacit 
consent,  or  through  delictual  obligation.  By  modern  practice 
those  who  have  not  supreme  power  cannot  send  ambassadors ; 
thus,  Elizabeth  refused  to  receive  an  ambassador  sent  by  the 
Duke  of  Alba,  as  he  was  not  accredited  by  the  Spanish  sovereign. 
The  criterion  of  sovereignty  is  not  merely  the  possession  of 
territory,  but  the  government  of  subjects.  Territory  may  be 
acquired  (1)  by  occupation,  if  it  never  belonged  to  any  one,  (2)  by 
prescription,  if  previously  abandoned,  (3)  by  donation,  (4)  by 
succession.  Under  the  last  head  he  examines  different  modes  of 
the  devolution  of  the  Crown.  These  matters  were  "burning 
questions  "  in  his  time,  in  view  of  the  accession  of  William  of 
Orange,  and  the  Spanish  Succession. 

With  regard  to  sovereignty  over  the  sea,3  Zouche  quotes  Ulpian 

1  De  la  Republique,  lib.  i.,  c.  ix.  2  PartJIL,  s.  2. 

3  Of.  the  present  writer's  essay  on  Bynkorshook  in  the  Journal  of  Com- 
parative Legislation,  August,  1908,  pp.  34  et  seq. 


232  RICHARD   ZOUCHE 

and  Paulus  as  being  mutually  contradictory  in  their  conception 
of  occupation,  and  follows  Grotius  in  admitting  the  right  of 
exclusive  jurisdiction  of  a  State  over  its  territorial  seas.  This 
subject  is  not  considered  by  him  to  any  large  extent,  as  it  had  been 
fully  treated  before  by  Grotius,  Selden,  and  others. 

If  a  State  inordinately  augments  its  military  or  naval  forces, 
and  its  warlike  equipment  generally,  such  a  proceeding,  whilst 
not  necessarily  implying  a  violation  of  any  specific  law  of  nations, 
may  nevertheless  amount  in  reality  to  a  molestation  of,  or  a 
hostile  or  unfriendly  act  to,  a  neighbouring  State  ;  in  which  case 
it  is  contended,1  with  Grotius,  that  the  latter  State  has  the  right 
of  intervention.  The  passage  in  Bacon's  Essays2  on  this  point 
may  be  recalled  :  "  For  there  is  no  question  but  a  just  fear  of  an 
imminent  danger,  though  there  be  no  blow  given,  is  a  lawful  cause 
of  war." 

Each  State  has  the  right  of  self-preservation,  and  therefore  the 
right  to  prevent  such  practices  on  the  part  of  others  as  may  tend 
directly  or  indirectly  to  injure  it.  The  question  is  asked  :3  May 
one  prohibit  the  passage  over  one's  territory  of  troops  of  neutrals 
or  forbid  the  commerce  of  their  subjects  ?  He  answers  that  such 
prohibition  may  be  exercised  in  three  cases  :  "  (1)  Si  cum  armatis 
transitus  requiratur.  ...  (2)  Juste  negatur  transitus  iis  qui 
hostes  adducunt.  ...  (3)  Si  non  a  principe  territorii  petatur 
transitus.  .  .  ."4  As  to  commerce,  Zouche  accepts  the  rigorous 
doctrine  of  his  contemporaries.  It  may  be  prohibited  if  it  is 
calculated  to  debilitate  or  impoverish  the  State  in  any  waj7 ; 
thus  anything  tending  to  weaken  morals  or  religious  faith  may  be 
forbidden,  as  also  the  exportation  of  gold  and  silver. 

If  disputes  should  arise  between  sovereigns  or  between  their 
respective  subjects,  they  may  be  settled  pacifically  by  permanent 
judges,  or  by  reference  to  arbitrators,  or  by  acceptance  of  the 
existing  lex  loci,  or  by  following  the  opinion  of  learned  men.6  He 
adds,  moreover,  that  citizens  may  prima  facie  be  under  the  juris- 
diction of  foreign  courts,  by  reason  of  their  committing  a  crime  in 
a  foreign  country.  These  propositions,  set  forth  at  a  time  when 

1  Part  I.,  s.  5.  2  The  wholo  series  published  in  1625. 

"  An  iis  quibuscum  ost  amicitia  transitus  sit  donegandus  ?"   (Part  II., 
s.  5,  p.  112). 


.,  8-  6,  p.  112. 


'  "  Judicium  inter  gentos  ost  quo  do  controvorsiis  inter  ipsas  earumve 
lubditos  statuitur,  utpote  (1)  cum  cortps  judicos  habont ;  (2)  cum  in  arbitros 
oompromittunt,  (3)  cum  ratione  loci  judicium  subeunt,  (4)  cum  prudentes 
o  us  consura  ferunt  "  (Part  II.,  s.  1,  p.  54). 


RICHARD  ZOUCHE  233 

nations  were  only  too  ready  to  rush  to  arms,  have  received  high 
commendation  from  later  writers.1 

Nationality  and  Domicile. — The  doctrine  of  nationality  was 
very  ill-defined  and  obscure  in  the  time  of  Zouche.  He  refers  to 
the  policy  of  ancient  Rome,2  where  it  was  a  constitutional  maxim 
that  acceptance  of  foreign  citizenship  by  a  Roman  citizen  operated 
ipso  facto  as  a  disfranchisement  of  his  former  rights.3  In  Greece 
and  in  other  ancient  States  a  different  custom  prevailed.  With 
reference  to  modern  times,  it  has  in  some  quarters  been  maintained 
that  an  individual  can  enjoy  concurrently  the  rights  of  citizenship 
of  two  States.  Thus  Heffter4  says  that  to  be  a  subject  of  several 
States  may  be  tolerated  :  "  Unterthan  mehrerer  Staaten  zugleich 
kann  man  personlich  nur  durch  Duldung  sein."  Though  special 
exceptions  may  be  made  for  urgent  reasons,  the  general  rule 
is  now  admitted  that  "  a  man  can  have  only  one  allegiance  "  ; 
and  this  law  is  laid  down  by  Zouche  with  precision  and  clearness. 
Referring  to  the  propriety  of  a  decision  in  the  French  Courts  on  a 
question  of  domicile,  he  observes  :  "  Fortassis  vero  id  respexerunt, 
quod  quamvis  incolatus  et  domicilium  in  externo  regno  sufficiunt 
ad  constituendum  aliquem  subditum  jurisdictioni  et  prsestandis 
muneribus  obnoxium  non  tamen  sit  satis  ad  constituendum  civem, 
ut  eorum  privilegiorum  civilium  sit  particeps  quae  in  regno  natis 
competunt,  nisi  specialis  allectio  supervenerit . "  5  Heffter  remarks 
that  Zouche  goes  too  far  in  denying  outright  the  possibility  of 
more  than  one  allegiance  ;6  and  also  refers  to  the  practice  of  various 
ancient  States  (though  not  Rome),  and  to  more  recent  admissions.7 
But  modern  views  follow  Zouche's  doctrine.  In  1 848,  for  example, 
when  Lord  Brougham  was  desirous  of  naturalizing  himself  as  a 
Frenchman,  the  French  Minister  of  Justice,  M.  Cremieux,  informed 
him  that  to  do  so  would  necessarily  entail  a  renunciation  of  his 
rights  as  a  British  subject.8 

Other  kindred  questions  are  discussed  by  Zouche,  in  addition 
to  matters  which  now  belong  to  the  domain  of  private  inter- 

1  Cf.  for  example,  E.  Cauchy :  Le  Droit  maritime  international  (Paris, 
1862).  2  Part  II.,  ss.  2,  13. 

3  Cf.  Cicero,  Pro  Balbo  :  "  Sed  nos  (Romani)  non  possumus  ot  hujus  esse 
civitatis  et  cujusvis  praeterea.  ..."  (c.  12). 

4  Das  europctische  Volkerrecht  (Berlin,  1867),  p.  114.  Part  II.,  s.  2. 

6  "  Jedoch  ist  dies  zu  weit  gegangen.     Alles  hangt  von  dem  Willen  dor 
Einzelstaaton  nb  "  (Ibid.). 

7  Referring,  for  example,  to  Moser,  vors.  vi.,  52,  and  to  Giinthor,  ii.  326. 

8  "  La  France  n'admet  pas  do  partago :  pour  devenir  Fransais  il  faut 
cosser  d'etre  Anglais.     Si  la  Franco  vous  adopto  pour  1'un  de  sos  onfants, 
vous  n'etes  plus  Lord  Brougham,  vous  devonez  lo  citoyon  Brougham." 


234  RICHARD   ZOUCHE 

national  law.  He  distinguishes  emigration  induced  by  want  or 
oppression,  from  the  deliberate  founding  of  colonies,  by  which, 
according  to  Thucydides,  a  new  people  is  formed  not  subject  to 
the  mother-country  but  her  equal.  If  one  sovereign  is  at  the 
head  of  two  different  countries,  does  an  individual  born  in  one  of 
them  enjoy  full  rights  of  citizenship  in  the  other  ?  He  reports 
an  affirmative  answer  in  the  case  of  Robert  Calvin,  a  Scotch 
subject,  and  John  Bingley,  an  English  subject,  with  regard  to 
succession  to  some  property  in  London  at  the  accession  of  James 
of  Scotland  to  the  English  throne.1  May  a  citizen  renounce  his 
allegiance  and  leave  his  country  without  permission  ?  With 
Cicero  and  Tryphonius,  he  appears  to  hold  the  affirmative,  unless 
it  is  to  avoid  payment  of  debts  or  military  service  ;  but,  with 
Grotius,  he  says  it  is  otherwise  in  the  case  of  collective  desertion.2 
A  person  having  lived  a  long  time  in  a  foreign  country  and  estab- 
lished a  family  there  is  not  to  be  necessarily  considered  as  having 
renounced  his  country  of  origin,  unless  he  formally  naturalize 
himself  ;  a  decree  of  the  Parliament  of  Paris  is  cited  to  this  effect. 
An  honour  conferred  on  a  subject  by  a  foreign  sovereign  need  not 
of  necessity  be  recognized  in  his  own  country.  With  regard  to 
national  jurisdiction,  Zouche  refers  to  the  important  question  of 
extradition.  He  points  out  that  this  is  not  a  matter  of  established 
law,  but  that  special  treaties  are  often  entered  into  on  the  subject 
by  the  States  concerned.3 

Ambassadors  and  Diplomacy. — Respect  and  good  feeling 
ought  to  exist  between  the  heads  of  friendly  States  and  between 
the  nations  themselves.  Courteous  relations  may  be  established 
either  by  the  sovereign  in  person  or  by  means  of  ambassadors  and 
envoys,  so  that  the  interests  of  the  respective  States  may  be 
adjusted  pacifically.  Envoys  charged  with  a  special  mission  by 
virtue  of  the  principle  of  Jiis  congressus  sive  colloquii  civilis  must 
be  persons  of  rank  or  distinction.4 

Before  and  at  the  time  Zouche  wrote,  there  were  really  no  fixed 
rules  as  to  the  rights  of  ambassadors  and  their  suites.  Divers 
doctrines  had  been  advanced.  It  was  contended  by  some  writers 
and  publicists  that  ambassadors  alone  enjoyed  absolute  immunity, 

1  Part  II.,  B.  2,  p.  65.  2  Grotius,  1.  ii.,  c.  5,  §  24. 

"  Et  proindo  m  fcederibus  ssepe  cautum  est  ut  subditi  dolinquentos,  si 
potantur  romittantur  "  (Part  II.,  s.  5). 

"  Dobitum,  sive  officium,  inter  eos  quibuscum  pax  est,  est  quod  prsestan- 
dum  ost,  intor  divorsos  principes,  vel  populos  quibuscum  pax  intercodit,  yoluti 
jus  congrasms,  logationis,  conventions,  et  fcederis  civilis.  cui  fides  inter- 
ponitur,  vol  jusjurandum  solonne  adhibotur  "  (Part  I.,  s.  3,  p.  10). 


RICHARD    ZOUCHE  235 

by  others  that  their  suites  must  be  placed  in  the  same  category, 
and  again  by  others  that  under  certain  circumstances  the  local 
jurisdiction  may  be  lawfully  exercised.1  Grotius  insisted  on  the 
principle  of  exterritoriality,  with  its  necessary  implications.  This 
legal  fiction  had  many  adherents,  but  was  not  by  any  means 
generally  accepted.  The  opinion  of  Gentilis2  was  not  quite 
decisive,  but  he  inclined  to  the  view  that  an  ambassador  is  amen- 
able to  the  territorial  law,  though  in  the  special  case  of  conspiracy 
he  may  be  sent  back  to  his  sovereign.  This  procedure  was 
adopted  in  the  case  of  Mendoza  (1584).  Soon  after  this  date  an 
anonymous  pamphlet3  was  issued  in  England,  urging  that  an 
ambassador  or  even  his  sovereign,  if  found  guilty  of  conspiring 
against  a  foreign  State  on  the  latter's  territory,  may  be  put  to 
death.  Later,  under  James  I.,  Sir  Robert  Cotton  denied  total 
exemption  ;  and  similarly  William  Welwood  held  that  respect  is 
due  to  ambassadors  so  long  as  they  respect  the  laws  of  the 
sovereign  to  whom  they  are  accredited. 

Zouche,  following  Grotius,  maintains  that  the  privileges  of 
ambassadors  rest  on  the  consent  of  nations,  that  is,  on  the  jus 
gentium  voluntarium.  He  distinguishes  between  the  various 
kinds  of  ambassadors — e.g.,  religious,  permanent,  extraordinary. 
Strictly  speaking,  an  ambassador  is  a  representative  sent  only  by 
a  supreme  Power,  and  not  by  a  colony,  or  province,  or  munici- 
pality. He  may  take  with  him  his  suite  (familia) — wife,  children, 
servants  ;  and  also  auxiliaries  (comites).  His  letter  of  credit  is 
the  manifest  of  his  authority.  His  sovereign's  mandate  is  some- 
times open  (apertum),  sometimes  secret  (arcanum).  Certain 
honours  due  to  him  in  receptions  and  audiences,  and  other  rules 
of  courtesy,  are  considered  in  detail.4  A  few  questions  are  raised, 
but  not  answered  :  e.g.,  How  far  is  an  ambassador  bound  by  his 
instructions  ?  Does  he  bind  his  sovereign  if  he  acts  contrary  to 
his  mandate,  and  if  so,  to  what  extent  ?  Is  he  entitled  to  inter- 
vene in  private  affairs  concerning  his  countrymen  ?  Is  he  to  be 
respected  by  others  besides  the  sovereign  to  whom  he  is  sent— 
e.g.,  by  princes  whose  territories  he  traverses  ?  Does  security 
extend  to  an  exile  sent  as  ambassador  to  his  own  country  by  a 
foreign  prince  ?  As  for  the  last  question,  Gentilis  had  decided  in 
the  negative,  Sir  Edward  Coke  in  the  affirmative.5 

1  Of.  Journal  of  Comparative  Legislation,  August,  1908,  pp.  36,  37. 

2  De  legationibus  libri  tres  (1585). 

3  De  legato  et  absolute  principe  perduellionis  reo  (1587). 
*  Part  I.,  s.  4.  6  Ibid. 


236  RICHARD   ZOUCHE 

In  case  of  offences  against  an  ambassador,  it  is  pointed  out  that 
they  are  offences  against  the  State  to  which  he  is  sent,  as  well  as 
against  the  St&te  sending  him. 

As  to  civil  actions,  Zouche  follows  Grotius  in  opposition  to 
Gentilis,  in  denying  liability  of  the  ambassador  and  suite  to  the 
local  jurisdiction,  but  in  any  case  his  house  may  not  be  made  a 
place  of  refuge  for  malefactors,  as  was  also  the  opinion  of 
Paschalius .  In  the  case  of  criminal  offences,  if  they  are  not  serious 
they  may  be  overlooked,  but  if  grave,  he  admits,  with  Grotius, 
that  the  offending  ambassador  must  be  conducted  back  to  his 
sovereign  with  a  demand  for  his  punishment  or  surrender.1  To 
prevent  imminent  danger  he  may  be  arrested  and  examined. 
Should  he,  however,  be  guilty  of  armed  violence,  he  may  lawfully 
be  put  to  death,  not  under  pretext  of  trying  or  judging  him,  but 
as  a  legitimate  self-defence,  "  per  modum  naturalis  defensionis, 
non  per  modum  pcenae." 

In  Zouche's  special  work  on  the  whole  subject,  his  Solutio 
qucestionis,  published  in  1657  after  the  famous  case  of  Don 
Pantaleon  Sa  (1653),  he  considers  the  conflicting  arguments  and 
examples,  ancient  and  modern,  for  and  against  the  exemption  of 
ambassadors  and  their  suites.  He  justifies  the  condemnation  of 
Don  Pantaleon  Saa  on  the  ground  that,  being  in  the  suite  of  his 
brother,  the  Portuguese  ambassador,  he  was  not  exempt  from  the 
English  jurisdiction.3  He  refers  to  Henry  IV.,  King  of  France, 
who  imprisoned  the  Spanish  ambassador's  secretary  for  attempt- 
ing to  corrupt  a  servant  of  the  King,  and,  the  ambassador  com- 
plaining, the  King  replied  :  "  Where  have  you  learnt  that 
ambassadors  and  their  servants  are  at  liberty  to  plot  against  the 
State  and  dignity  of  the  prince  with  whom  they  reside  ?"  4  Finally 
four  reasons  are  stated  why  members  of  the  suite  are  not  inde- 
pendent of  the  local  tribunals  :5  (1)  they  are  more  of  the  nature 

"...  Bum  romittendum  ad  principem  qui  eum  misit  cum  postulate 
ut  eum  puniat  aut  dedat  "  (Solutio  qucestionis,  c.  i.). 

2  Cf.  Journal  of  Comparative  Legislation,  loc.  cit.,  p.  37. 

3  Ixjibnitz  condemned  tho  conduct  of  Cromwell  in  this  case  as  an  infrac- 
tion of  the  law  of  nations  (De  jure  suprematus  ac  legationis  principum  Oer- 
manice,  c.  vi.). 

Similarly,  Bynkershoek  statod  (De  foro  legatorum,  1721,  c.  xviii.)  that  he 
had  found  very  few  cases  of  such  punishment,  and  that  such  rare  exceptions 
ought  not  to  bo  held  as  invalidating  the  general  rule  of  immunity.  (Cf. 
Journal  of  Comparative  Legislation,  loc.  cit.,  pp.  36  et  seq.). 

"  Ubinam  gentium  didicistis  logatos  et  eorum  ministros  potestatem 
haboro  machinandi  contra  Statum  et  dignitatem  principis  apud  quern  lega- 
tionom  obount  ?"  (Solutio  qucestionis). 

G  Hid.,  c.  xiv. 


RICHARD  ZOUCHE  237 

of  the  appurtenances  of  the  ambassador  ("  comites  vero  facti  sunt 
accessorie  tantum  "),  and  do  not  possess  the  same  qualifications  ; 
(2)  letters  of  credit  are  not  given  to  them  ;  (3)  the  ambassador 
alone  is  the  representative  of  his  prince,  and  this  fact  is  the  main 
basis  of  immunity  ("legatus  solus  personam  principis  sustinet, 
quod  est  praecipuum  immunitatis  fundamentum  ") ;  and  lastly 
(4)  more  credit  and  confidence  are  given  to  ambassadors  by  the 
sovereigns  to  whom  they  are  accredited  ("  quod  plus  legatis  quam 
comitibus  eorum  ab  eo  quo  admittit  credi  oporteat ")  because 
they  are  generally  men  of  approved  reputation,  few  in  number, 
and  easy  to  be  watched  and  prevented  in  any  mischievous  design. 

A  few  matters  remain  to  be  mentioned  under  the  head  of  peace. 
The  contractual  transactions  of  a  sovereign  carry  with  them  the 
same  rights  and  obligations  as  they  would  in  the  case  of  a  private 
citizen.  Agreements  made  by  a  sovereign  without  any  stipulation 
as  to  duration — for  example,  for  the  delivery  of  towns  or  other 
places,  and  sums  of  money — descend  to  his  successors,  when  they 
have  been  concluded  under  considerations  of  public  utility.3 
More  solemn  engagements,  such  as  formal  treaties,  define  clearly 
certain  reciprocal  rights  and  obligations,  and  have  as  an  additional 
sanction  the  oath  of  fidelity,  the  supremo,  religio.2 

May  we  conclude  treaties  with  people  of  a  different  religion  ?3 
This  question  points  to  the  fact  that,  though  the  De  jure  inter 
gentes  had  been  published  two  years  after  the  Peace  of  Westphalia, 
it  must  have  been  written  some  time  before  ;  otherwise  he  would 
surely  have  taken  cognizance  of  its  new  provisions  indicating 
greater  breadth  of  view  and  toleration.  In  the  consideration 
of  various  other  matters,  it  appears  that  Zouche  does  not  hesitate 
to  declare  that  where  the  undertakings  or  promises  of  a  sovereign 
conflict  with  public  policy  or  national  interest  of  vital  importance, 
the  latter  should  predominate.  For  example  :  Is  a  sovereign  who 
has  promised  help  to  another  State  bound  to  furnish  it  should 
there  be  afterwards  serious  difficulties  in  his  way  ? 4  Zouche 
adopts  a  stringent  interpretation  of  the  clause  rebus  sic  stantibm. 
In  1585  Queen  Elizabeth  had  promised  the  United  Provinces  men 
and  money,  but  new  circumstances  having  arisen,  she  referred 
the  matter  to  certain  jurists,  who  declared  that  every  convention 

1  Part  I.,  s.  4,  and  Part  II.,  s.  4.  -  Part  I.,  s.  4. 

3  "  An  loedus  inire  liceat  cum  iis  qui  alien!  sunt  a  religione  ?"  (Part  II., 
s.  4).     [By  religio  he  means  the  Christian  religion.] 

4  "  An  princeps  qui  promisit  auxilia  cum  commode  non  possit,  praestare 
teneatur  ?"  (ibid). 


238  RICHARD   ZOUCHE 

must  be  understood  rebus  sic  stantibus,  and  that  hence  she  was 
relieved  of  her  engagement.  May  we  revoke  privileges  of  com- 
merce granted  in  an  agreement  with  foreigners  ?x  Zouche  does 
not  admit  that  privileges  may  be  so  far  exercised  by  foreigners  as 
to  inflict  injury  on  our  own  subjects,  and  that  therefore  in  such 
a  case  they  may  be  revoked ;  in  support  of  which  opinion  he  recalls 
a  certain  negotiation  between  Elizabeth  and  the  Hanseatic  towns. 
A  solemn  oath  exacted  through  fear  may  not  on  that  account  be 
repudiated,  though  it  may  be  otherwise  in  the  case  of  an  informal 
promise  ;  but  an  oath  taken  under  a  mistaken  notion  of  material 
and  relevant  facts,  or  through  fraudulent  representations,  cannot 
be  considered  as  binding.2  If  one  of  the  parties  to  a  treaty 
violates  a  single  condition,  then  the  other  contracting  party  may 
repudiate  the  whole.3 

(6)  International  Law  in  Time  of  War.  Writings  before 
Zouche. — The  chapters  of  Zouche's  treatise  which  are  devoted 
to  war,  like  those  dealing  with  peace,  are  more  thorough  and 
comprehensive,  more  systematic,  and  authoritative  than  any  of 
the  contributions  by  his  English  predecessors.  The  publication, 
indeed,  of  Gentilis'  De  jure  betti  (1589)  marks  an  important  date 
in  the  history  of  international  law,4  and  Zouche  alone  of  all  the 
writers  in  England  for  a  century  subsequent  to  Gentilis  recognized 
fully  the  importance  of  this  work,  and  took  an  account  of  its 
doctrines,  many  of  which  are  accepted  by  him  unhesitatingly. 
Soon  after  the  De  jure  belli  there  appeared  in  England  several 
works — translations,  adaptations,  or  more  or  less  original  con- 
tributions— e.g.,  Eliot's  Discourse  of  War  and  Single  Combat ;  and 
Instructions  for  the  Warres,  a  translation  from  the  French.  Much 
more  considerable  than  these  is  the  original  work,  published  in 
1593  by  Matthew  Sutcliffe  :  The  Practice,  Proceedings  and  Laives 
of  Armes,  the  indebtedness  of  which  to  Gentilis  is  apparent.  He 
deals  with  the  various  causes  of  war,  ridicules  the  idea  of  war 
being  illegitimate  when  there  is  a  just  cause  (in  opposition  to 
earlier  objections  on  the  ground  of  its  being  contrary  to  religion), 
insists  on  the  right  of  sovereigns  to  prevent  the  large  increase  of 

"  An  commercii  sive  negotiationis  privilegia,  de  quibus  cum  exteris 
convenit,  rovocaro  liceat  ?"  (ibid.). 

"Si  certum  est  euni  qui  juravit  aliquod f actuin  supposuisse  quod  revera 
ita  se  non  haboat  ac  nisi  id  crodidisset,  uon  fuisse  juraturum,  lion  obligabit 
juramentum  "  (ibid.). 

"  Si  pars  altora  in  fcedere  fefellerit,  potest  altera  discedere  "  (Part  II., 
s.  5). 

4  Cf.  E.  Nys,  op.  cit. 


RICHARD   ZOUCHE  239 

forces  by  their  neighbours,  denounces  the  Spanish  encroachments, 
points  approvingly  to  the  action  of  Louis  XI.,  Lorenzo  de' 
Medici  preserving  the  balance  of  Italian  States,  and  Elizabeth's 
policy  with  regard  to  the  Low  Countries,  holds  that  declaration 
of  war  is  not  necessary  when  one  is  attacked  (as  in  the  case  of  the 
war  with  Philip  II.),  and  emphasizes  that  in  the  sacking  of  towns 
mercy  must  be  shown  to  women,  children,  the  old  and  feeble. 
Questions  relating  to  prisoners  and  prizes  are  also  considered. 
The  aim  and  nature  of  war  are  thus  summarized  :  "  Those  warres 
are  just  and  lawful  which  are  made  by  the  souveraigne  magistrate, 
for  lawful  and  just  causes,  being  both  orderly  denounced  in  cases 
requisite  and  moderately  prosecuted,  to  the  end  that  justice  may 
be  done  and  an  assured  peace  obteined."  Some  ten  years  later 
William  Fulbecke  issued  The  Pandectes  of  the  Law  of  Nations  .  .  . 
(1602),  of  which  the  seventh  chapter  treats  of  war,  based  on  the 
authority  of  Gentilis  and  Ayala.  A  solemn  declaration  is  de- 
manded, and  prisoners  are  not  to  be  put  to  death.  Similarly, 
Eichard  Bernard,  writing  in  1629,  urges  moderation  and  mercy, 
and  affirms  the  legitimacy  of  war,  allows  right  of  conquest  and 
right  of  booty,  and  like  Gentilis  and  Sutcliffe,  admits  the  right 
of  intervention  with  a  view  to  self-preservation. 

Zouche  on  the  Law  of  Nations  in  time  of  War. — Though 
Zouche  exhibits  a  greater  grasp  and  breadth  of  treatment,  his 
kinship  to  these  earlier  writers  is  obvious.  He  defines  war  as  a 
struggle  undertaken  by  the  sovereign  power  for  a  just  cause.1 
As  a  rule  a  formal  declaration  is  necessary.  Under  such  circum- 
stances it  would  be  bellum  solenne,  in  contradistinction  to  bellum 
minus  solenne — private  war,  as  family  against  family,  admitted  by 
the  ancients,2  or  as  in  the  case  of  reprisals.  Measures  of  reprisal 
are  not  permissible  in  private  law,  as  it  is  contrary  to  natural 
equity  to  inflict  an  injury  on  one  person  on  account  of  the  liability 
of  another.  But  it  is  otherwise  in  the  law  of  nations  ;  in  which 
case  each  individual  is  considered  as  forming  a  constituent  part  of 
the  State,  and  therefore  liable  for  its  default.3 

1  "...  Justa  contentio  quse  scilicet  authoritate  logitima  et  ox  justa 
causa  movetur  "  (Part  I.,  s.  6).     Cf.  the  statement  of  Suarez. 

2  dvdpo\-r)\l/ia.,     literally     "seizure    of     men"     (Xa/j.pdi'w,     X^o/tat)  :     an 
Athenian  law,  which,  in  case  a  citizen's  murder  abroad  remained  unpunished, 
authorized  the  seizure  of  three  citizens  of  the  offending  State.     (Cf.  Lex  ap. 
Dem.  647,  24  seq.  :  1232,  4). 

3  "  Jure  tamen  gentium  introducturu  apparet,  ut  pro  eo  quod  praestare 
debet  civilis  societas,  aut  ejus  caput,  sive  per  se  primo  sive  quod  aliono  debito 
jus  non  reddondo,  se  obstrinxerint,  obligata  sint  bona  omnium  subditorum  " 
(Part  II.,  s.  6). 


240  EICHAED  ZOUCHE 

It  is  the  duty  of  States  to  try  by  every  means  to  obtain  satis- 
faction before  resorting  to  warlike  measures. 

Declaration,  however,  may  be  legitimately  dispensed  with 
in  certain  cases  :  (1)  when  a  war  is  begun  for  purposes  of 
necessary  self-defence  ;  (2)  against  those  who  are  already  con- 
sidered as  enemies  (hastes) ;  (3)  against  rebels  or  traitors  to  whom 
the  law  of  nations  does  not  apply  ;  and  (4)  when  ambassadors  are 
sent  to  demand  satisfaction,  and  do  not  obtain  it.1 

He  examines  the  different  kinds  of  military  power  in  war,  and 
distinguishes  classes  of  enemies  :  "  Status  inter  eos  quibuscum 
bellum  est,  est  conditio  inter  ipsos  quae  ad  imperium  militare 
refertur,  quod  est  dominationis,  praepotentiae,  et  patrocinii  mili- 
taris,  vel  conditio  cum  aliis  ex  qua  alii  inimici,  alii  hostes 
habentur."2  Thus,  military  power  is  of  three  kinds  :  dominatio, 
acquired  by  force  of  arms  ;  prcepotentia,  authority  of  conqueror 
over  the  conquered  ;  patrocinium,  military  rights  of  the  sovereign 
as  to  vassals.  As  to  enemies,  they  may  be  inimici,  adversarii, 
hostes — e.g.,  brigands,  rebels,  traitors,  pirates  ("  quos  offendere  et 
perdere  omnino  licet  "),  and  justi  hostes  ("  quibus  omnia  belli  jura 
debentur  ").  A  few  relative  questions  are  next  raised  :3  Can  we 
consider  as  enemies  those  who  violate  natural  law,  or  the  law  of 
nations,  those  of  another  religion  [meaning  probably  those  not  of 
the  Christian  religion],  subjects  of  a  friendly  State  living  in  enemy 
territory  ?  Is  an  enemy  subject  living  in  neutral  territory  to  be 
considered  enemy  or  neutral  ?  Zouche  gives  many  conflicting 
examples  and  opinions,  but  his  own  conclusion  does  not  clearly 
appear. 

Property  may  be  acquired  in  two  ways  :  acquisitio  particularis, 
by  individuals ;  acquisitio  universalis,  by  the  State,  when  terri- 
tories are  invaded  or  surrendered.  Are  those  things  which  are 
taken  by  the  enemy  and  carried  off  to  neutral  territory  to  be 
restored  to  the  original  owners  ?  He  inclines  to  the  affirmative, 
and  mentions  a  case  in  support :  thus,  when  Spanish  ships  were 

1  "...  (1)  Cum  suscipitur  bollum  ex  causa  necessariae  defonsionis,  (2)  cuin 
his  bellum  infortur,  qui  jam  hostes  habentur,  (3)  cum  contra  rebelles  et 
dofectores  arma  sumuntur,  quia  cum  illis  jus  gentium  non  observatur  .  .  . 
(4)  ...  cum  logatis  res  repotentibus  ese  noc  rodditae  sunt,  nee  sit  aliter  satis- 
factum  "  (Part  II.,  s.  10). 

M.  Scelle  observes  somewhat  sarcastically  on  this  statement  and  in 
reference  to  British  practice :  "  On  sait  que  les  jurisconsultes  anglais  ont 
toujours  adinis  que  parfois  la  declaration  peut  etre  omise,  et  quo  la  pratique 
anglaiso  en  a  souvent  sur  ce  point  pris  a  son  aise  avec  le  droit  des  gens  " 
(op.  cit.,  p.  313). 

2  Part  I.,  s.  7.  3  Part  II.,  s.  7. 


RICHARD    ZOUCHE  241 

captured  by  the  Dutch  and  carried  to  an  English  port,  the  Court 
of  Admiralty  ordered  their  restitution.  Does  a  thing  taken  from 
the  enemy  become  the  property  of  the  captors  before  it  is  carried 
by  them  to  a  safe  place  ?  Can  a  thing  be  considered  as  captured 
when  it  can  no  longer  escape  from  its  pursuers  ?  Zouche  defines 
postliminium  in  the  terms  of  Paulus  :  "  .  .  .  Jus  amissse  rei  reci- 
piendse  ab  extraneo  et  in  statum  pristinum  restituendse  .  .  .,"  and 
the  different  rules  laid  down  are  taken  substantially  from  the 
Roman  jurisprudence.  May  we  plunder  the  property  of  those 
whose  forts  and  fields  are  occupied  by  the  enemy  ?  Yes,  in  the 
case  of  property  previously  belonging  to  the  enemies  themselves, 
or  afterwards  lawfully  acquired  by  them.1 

A  large  number  of  questions  are  suggested  relating  to  military 
discipline  and  to  the  organization  of  military  justice.  Many  of 
these  matters  had  been  more  or  less  regulated  in  England  from 
early  times,  rules  for  each  war  having  been  drawn  up  by  the  king 
or  by  the  commander-in-chief .  Thus,  regulations  and  ordinances 
were  issued  by  John,  Richard  I.,  Richard  II.,  Henry  V.  (the 
latter  of  whom  ordered  the  protection  of  women  and  children, 
priests  and  sacred  objects,  and  men  at  the  plough) ;  further 
regulations  were  made  by  Henry  VII.,  Henry  VIII.,  and  Eliza- 
beth ;  and  in  the  Civil  War  rules  were  drawn  up  for  the  Royal 
forces  by  the  Duke  of  Northumberland  (1640),  and  the  Laws  and 
Ordinances  of  War  (1643),  by  Essex,  or  the  Parliamentary  forces. 
Zouche,  following  this  tradition,  discusses  divers  matters  arising 
in  the  conduct  of  warfare,  and  various  reciprocal  obligations  of 
the  belligerents.  He  deals  with  the  congressus  militaris,  when 
sovereigns  or  commanders  come  to  a  conference  or  single  combat ; 
military  envoys  ;  ambassadors  extraordinary  to  negotiate  truces 
and  conditions  of  peace.  Military  arrangements  between  the 
respective  heads  relate  to  (1)  free  access  (de  commeatu),  (2)  truces 
(de  induciis),  (3)  exchange  and  ransom  of  prisoners  (de  captivis 
permutandis  et  redimendis),  (4)  surrender  of  places  (de  conditionibus 
Us  qui  loca  obsessa  dedunf) .  Military  treaties  are  concluded  by  the 
sovereign  power  when  armistices  and  final  peace  are  concerned. 
Do  treaties  of  peace  concluded  by  generals  bind  the  sovereign  or 
State  ?  Zouche  refers  to  the  insistence  of  the  Roman  Senate  as 
to  the  necessity  of  its  sanctio'h.  But  when  the  sovereign  power 
has  had  cognizance  of  such  treaty  and  has  acquiesced,  ratification 
is  to  be  presumed  where  such  circumstances  exist  as  imply  con- 

*  Part  II.,  s.  8. 

17 


242  RICHARD   ZOUCHE 

currence  with  the  conditions ;  though  mere  silence  in  itself  does 
not  warrant  this  inference.1  If  an  engagement  entered  into  by 
a  general  is  repudiated  by  the  sovereign,  ought  the  other  party 
to  be  restored  to  its  status  quo  ante  ? 

Then  follow  some  questions  relating  to  hostages  :  Can  they  be 
restored  after  the  death  of  the  one  for  whom  they  had  been 
given  ?  Can  fugitive  hostages  be  received  by  those  who  had 
given  them  ?2  To  the  latter  question  Gentilis  and  Grotius  gave 
a  negative  reply  which,  Zouche  points  out,  is  in  conformity  with 
the  contention  of  Edward  III.  of  England.  May  we  put  to  death 
hostages  for  an  offence  of  the  one  who  has  given  them  ?  Gentilis 
says  yes,  Grotius  no,  but  Zouche  does  not  decide.  Does  the  lex 
talionis  exist  between  enemies  ?  Gentilis  seems  to  defend  it,  and 
Grotius  is  against  it.  To  kill  prisoners  taken  by  us  when  we  have 
no  means  of  securely  maintaining  them  in  our  power  is  con- 
demned by  Gentilis.  Illegitimate  practices  are  pointed  out — 
though  rather  suggested  in  the  form  of  questions — e.g.,  ill- 
treatment  of  prisoners,  women  and  children,  women  who  take 
up  arms,  profanation  of  sacred  places,  use  of  guile,  lying,  or 
ambush  in  military  conferences,  poison,  assassination,  refusal 
of  burial  to  enemies,  ill-treatment  of  envoys  and  of  those  who 
surrender,  and  various  other  practices  of  a  like  nature. 

Maritime  Law  and  Naval  War. — English  writings  on  mari- 
time law  before  Zouche  are  not  of  great  consequence.  The  rules 
of  the  Consolato  del  Mare,  embodying  customs  many  of  which 
date  from  very  early  times,  for  a  long  time  regulated  the  law  as 
to  prizes  in  England,  as  in  many  other  States.  Edward  III., 
Richard  II.,  and  Henry  VII.  largely  prohibited  the  importation  of 
goods  except  on  English  vessels  ;  Elizabeth  excluded  foreign  boats 
from  the  fisheries  in  the  adjacent  seas,  and  also  from  the  coasting- 
trade.  In  the  sixteenth  century  England  energetically  opposed 
the  rule  "robe  d'ennemi  confisque  celle  d'ami,"  which  France 
claimed  to  have  established.  In  the  middle  of  the  next  century, 
important  legislative  measures  were  passed — e.g.,  the  Long 
Parliament  prohibited  (1650)  foreign  vessels  from  trading  with 
the  American  colonies,  except  by  special  licence  ;  and  in  the 
following  year  Cromwell  passed  the  Act  of  Navigation. 

1  Part  II,  s.  9. 

"  Gentilis  vero  et  Grotius  ambo  concludunt  civitatem  quse  dedit  obsidom 
rpcipore  et  retinero  non  debore,  non  magis  quam  recipere  rem  datam  pignori 
citra  furti  crimen  ;  ot  proindo  Edvardus  tortius  Rex  Angliae  uste  accusabat 
quod  contra  jus  obsidom  fugiontom  rocopissot  "  (Part  II.,  s.  9). 


BICHABD   ZOUCHE  243 

William  Welwood's  Abridgement  of  all  Sea-lawes  (1613)  touches 
on  the  jurisdiction  of  the  judges  of  the  High  Court  of  Admiralty, 
and  on  the  controversy  as  to  fishing.  He  maintains  that  there  is 
not  necessarily  a  universal  liberty  to  fish  in  any  sea  whatever, 
and  protests  against  Grotius'  confusing  liberty  of  navigation  with 
liberty  of  fishing.  Gentilis,  in  his  Advocatio  Hispanica  (1613), 
deals  with  the  various  disputes  which  had  arisen  between  England 
and  Spain  and  other  Powers,  and  considers  certain  matters 
relating  to  contraband,  prizes,  and  pirates. 

The  little  that  Zouche  has  to  say  on  the  law  of  naval  war  is 
concerned  with  the  requisition  of  foreign  vessels,  maritime  cap- 
tures, and  right  of  visit.  He  maintains  that  requisition  for  war 
of  foreign  vessels  touching  our  ports  may  be  quite  legitimate.1 
Is  it  permissible  to  confiscate  neutral  property  on  an  enemy 
vessel  ?  In  the  time  of  Zouche  the  prevailing  maxim  was  that 
if  the  vessel  could  be  legally  confiscated,  then  its  cargo  could  also 
be  seized.2  In  the  opinion  of  Grotius  this  is  only  a  presumption 
as  to  the  enemy  character  of  the  cargo,  and  could  be  rebutted  by 
evidence  to  the  contrary.  With  regard  to  enemy  goods  on  a 
neutral  vessel,  Zouche  states  that  the  English  Court  of  Admiralty 
had  decided  that  they  may  be  lawfully  captured.  Right  of  visit 
is  regarded  by  him  from  the  point  of  view  of  a  maritime  ceremonial, 
which  depends  on  the  mutual  agreement  or  comity  of  nations. 
A  merchant-vessel  which  fails  to  salute  a  foreign  man-of-war 
cannot  merely  on  that  account  be  taken  as  a  lawful  prize.  A 
vessel  is  considered  captured  if  it  is  brought  to  the  captor's  port, 
or  to  a  station  where  his  fleet  lies,  intra  prcesidia,  in  such  a  way 
that  possibility  of  recapture  is  minimized  ;3  but  to  make  the  rule 
more  precise,  safe  detention  during  twenty-four  hours,  as  Grotius 
stated,  was  recognized  by  European  nations  as  the  criterion.4 

Neutrality,  Contraband,  etc. — Little  is  said  by  Zouche  about 
the  rights  and  duties  of  neutrals  and  the  correlative  rights  and 
obligations  of  belligerents.  He  uses  the  terms  amicus  and  amicitia 
instead  of  the  more  expressive  neutral  and  neutrality,  which  had 
already  been  used  before  him,  though  by  no  means  generally.5 

1  Part  II.,  s.  5. 

2  "...  Si  navis  sit  obnoxia,  bona  etiam  obnoxia  haberi  "  (Part  II.,  s.  8). 

3  "  Placuit  vero  gentibus  ut  rem  cepisse  is  intelligatur  quia  ita  detinet  ut 
rocuperandi  spem  probabilem  alter  amiserit ;  ut,  cum  ros  mobiles  intra  fines, 
id  est,  intra  prsesidia  porductse  fuerint  "  (Part  II.,  s.  8). 

4  "Sed  recentiori  jure  gentium  inter  Europacos,  inquit  Grotius,  intro- 
ductum  videtur,  ut  talia  capta  censeantur,  ubi  por  horas  viginti  quatuor 
in  potestate  hostium  fuorint  "  (ibid.). 

5  Cf.  Journal  of  Comparative  Legislation,  loc.  cit.,  pp.  42  seq. 


244  BICHABD   ZOTJCHE 

Is  it  permissible  to  pursue  an  enemy  on  neutral  territory  ?  He 
inclines  to  the  opinion  that  an  enemy,  by  the  law  of  nations,  may 
be  pursued  everywhere.1  May  we  carry  over  neutral  territory  a 
prisoner  captured  on  enemy  territory  ?  His  opinion  appears  to 
be  in  the  negative,  provided  he  has  not  yet  been  carried  intra 
proBsidia.2  He  recalls  an  instance  in  the  war  between  Geneva  and 
Milan ;  the  latter  caused  prisoners  to  pass  over  the  territory  of 
Bologna  ;  and  John  of  Immola,  a  celebrated  jurist,  having  been 
consulted  by  the  pontifical  legate,  decided  that  it  was  an  infraction 
of  the  law  of  nations. 

The  subject  of  contraband3  has  been  one  of  the  most  disputed 
questions  in  the  whole  range  of  international  law,  from  the  earliest 
to  the  most  recent  times.  In  the  time  of  Zouche,  usage  and 
practice  were  changeable  and  capricious,  and  adopted  by  each 
State  as  it  thought  fit  and  convenient  in  view  of  its  own  interests. 
It  was  only  after  his  time  that  a  distinct  international  effort  was 
made — e.g.,  in  the  Treaty  of  the  Pyrenees  (1659)  and  in  the  Treaty 
of  Utrecht  (1713),  to  indicate  more  clearly  the  nature  of  contra- 
band goods,  and  to  enumerate  certain  specific  articles.  Zouche 
follows  Grotius'  view  that  only  such  things  ought  to  be  con- 
sidered contraband  as  directly  serve  for  war,  or  can  be  so  utilized — • 
e.g.,  arms,  money,  provisions.  He  admits  that  this  is  a  logical 
inference  from  the  fact  that  the  institution  of  contraband  is  a 
penal  measure.  But  he  goes  further  than  Grotius  and  Bynkers- 
hoek  in  fregarding  also  as  contraband,  in  certain  cases,  those 
things  of  which  admittedly  contraband  goods  can  be  made — 
e.g.,  iron  (for  arms),  wood  (for  ships),  etc.  In  this  respect,  he 
takes  into  account  the  nature  of  the  surrounding  circumstances 
in  each  particular  case,  and  urgent  national  necessity.4  Some- 
times, indeed,  the  more  stringent  measures  will  be  necessary  to 
prevent  fraud.  He  is  no  doubt  guided  in  this  attitude  by  the 
provisions  of  the  Roman  law — e.g.,  the  senatus  consultum  Mace- 
donianum — which  prohibited  not  only  loans  of  money  to  a  minor, 
but  also  those  things  for  which  money  could  be  procured,  "  cum 
contractus  fraudem  sapit." 

Again,  are  accessories  of  prohibited  articles — e.g.,  sheaths  for 

1  "  Hostis  qui  est  ubique  secundum  jus  gentium  impeti  potest  "  (Part  II., 
s.  9). 

"...  Alibi  captus,  nondum  intra  praesidia  deductus,  in  alieno  territorio 
detinori,  vol  coerceri  non  debet  "  (Part  IL,  s.  9). 

3  Cf.  Journal  of  Comparative  Legislation,  loc.  cit.,  pp.  44  seq. 

"  Ubi  est  cadem  ratio  prohibitionis,  materise  et  speciei,  item  jus  in 
utraquc  consendum  est  "  (Part  IL,  s.  8). 


RICHARD    ZOTJCHE  245 

swords — to  be  themselves  prohibited  ?  Many  ancient  examples 
are  cited,  but  no  opinion  is  expressed.  Similarly,  no  solution  is 
given  to  the  further  problems  suggested  :  May  we  intercept  those 
things  returning  from  the  enemy,  as  well  as  those  going  to  him  ? 
Is  tobacco  to  be  considered  as  contraband  [on  the  supposition 
that  it  may  be  used  for  preserving  provisions  !]  ?  Finally,  what 
is  the  position  in  the  case  of  a  mixture  of  contraband  goods  and 
lawful  goods  found  on  a  vessel  ?  Zouche  insists,  and  quotes  an 
ancient  author1  in  support,  that  it  is  essential  to  discriminate 
between  the  case  where  both  kinds  of  goods  belong  to  the  same 
owner,  and  the  case  where  they  belong  to  different  owners.  In 
the  event  of  the  former,  both  may  be  lawfully  confiscated, — at 
least  if  the  owner  was  aware  of  the  fraudulent  shipment.  There 
is  no  reference  in  Zouche's  work  to  English  contemporary  practice, 
but  it  appears  that  the  earlier  custom  of  the  Admiralty  Courts  was 
to  condemn  both  ship  and  cargo  irrespective  of  ownership  ;  after- 
wards the  rule  was  relaxed,  so  that  confiscation  applied  to  the 
vessel  and  the  innocent  portion  of  the  cargo  only  when  they  were 
the  property  of  the  owners  of  the  contraband,  or  where  there  was 
fraudulent  conduct.2 

Value  of  Zouche's  Work. — The  substance  of  Zouche's  work  on 
international  law  has  now  been  considered,  his  doctrines  have  been 
briefly  set  forth,  and  his  relationship  to  his  predecessors  and  con- 
temporaries has  been  indicated.  His  wide  learning,  and  great 
ability — judicial  as  well  as  literary — were  recognized  in  his  own 
time  ;  and  his  opinions,  both  in  his  lifetime  and  after  his  death, 
were  regarded  as  possessing  high  authority.  His  versatility  was 
remarkable.  As  M.  Rivier3  remarks  :  "  Er  war  beruhmt  als 
scharfer,  gelehrter,  vielseitiger  Jurist,  'living  Pandect  of  the 
Law,'  Civilist,  Canonist,  Feudist,  Publicist,  auch  als  Dichter  ; 
vorziiglich  bedeutend  ist  er  aber  als  einer  von  den  Begriindern  der 
Wissenschaft  des  Volkerrechts."  His  fame  spread  on  the 
Continent,  several  editions  of  his  work  were  reprinted,  and  trans- 
lations were  made.4 

1  Petrinus  Bellus,  De  re  militari. 

2  Cf.  Robinson's  Admiralty  Reports,  vol.  iii.,  p.  221,  note  (a),  (cited^by 
Wheaton  History  of  the  Law  of  Nations,  p.  134). 

3  In  F.   von  Holtzendorff :   Handbuch  des    Volkerrechts  (Berlin,    1885), 
vol.  i.,  p.  417. 

4  His  De  jure  inter  gentes,  Oxford,  1650;  Leyden,  1651 ;  The  Hague,  1659  ; 
Mayence,  1661  ;  last  Latin  edition,  1759. 

A  German  translation,  or  rather  adaptation,  in  which  Zouche's  name  is 
not  mentioned,  was  published  by  Gottfried  Vogel,  Frankfort,  1666,  under  the 


246  RICHARD   ZOUCHE 

Varying  estimates  of  his  work,  however,  have  been  made  in 
more  modern  times.  Wheaton,1  for  example,  regards  the  De  jure 
inter  gentes  as  a  mere  abridgment  of  Grotius,  with  illustrations  for 
the  most  part  drawn  from  Roman  law  and  Roman  history,  and 
asserts  that  its  title  to  fame  rests  merely  on  the  happy  termino- 
logical innovation — "jus  inter  gentes."  On  the  other  hand, 
M.  Rivier,  as  above,  terms  him  one  of  the  founders  of  the  science 
of  international  law  ;  Kaltenborn2  speaks  of  his  principal  book 
as  the  first  real  treatise  on  international  law  ;  Ompteda3  uses 
similar  expressions,  and  holds  that  Zouche  occupies  an  important 
place  in  the  history  of  the  law  of  nations.  The  true  estimate  is 
nearer  to  the  latter  than  to  that  of  Wheaton,  who  cannot,  surely, 
have  read  the  work  he  so  unjustifiably  disparages. 

It  is  true  that  Zouche  is  more  of  a  systematize!'  of  doctrines 
than  an  innovator  ;  but  then  the  same  remark  largely  applies  to 
such  a  great  writer  as  Grotius.  Indeed,  it  would  have  been 
impossible  then  to  be  otherwise,  considering  the  epoch  in  which 
he  wrote,  the  nature  of  contemporary  events,  the  unsettled 
relationship  between  States,  the  clash  of  international  politics,  the 
conflict  of  religions — in  a  word,  the  rapidly  changing  character 
of  the  age.  To  write  abstract,  theoretically  complete,  and,  as  it 
were,  final  treatises — seemingly  adapted  more  for  a  Utopia  than 
for  an  imperfect  world — is  to  do  much  towards  instigating  nations 
to  discredit  the  whole  fabric  of  international  law  ;  and  Zouche 
was  far  too  wise  to  attempt  such  a  task. 

The  more  certain  subject-matter  of  the  law  of  nations  he 

title  of  Allgemeines  Volkerrecht,  wie  auch  allgemeines  Urtheil  und  Anspriiche 
oiler  Volker. 

His  other  important  work,  dealing  with  the  legal  position  of  ambassadors, 
and  forming  a  supplement  to  and  expansion  of  his  treatment  of  the  same 
subject  in  the  earlier  work  is  the  Solutio  qucestionis  ....  first  published  at 
Oxford,  1657  ;  Cologne,  1662  ;  Berlin,  1669  (with  notes  by  Hennolius). 

A  German  translation  was  issued  at  Jena,  1717,  by  J.  J.  Lehmann,  under 
the  title  of  Eines  vornehmen  englischen  Jureconsulti  Qedanken  von  dem  Trakte- 
ment  eines  Ministers  ;  an  English  translation  by  D.  J.,  London,  1717  ;  and 
another  in  the  same  year  by  an  unknown  translator,  giving  the  Latin  text 
also. 

(The  latter  three  translations  wore  published  in  connection  with  the  affair 
of  Gyllonburg,  the  Swedish  ambassador.) 

1  Op.  cit.,  p.  101. 

-  Kritik  des  Volkerrechts  (1847) :  "  Das  erste  eigentliche  Lehrbuch  des 
Volkorrechts." 

"  Dieses  ist  als  das  erste  Lehrbuch  des  gesammten  Volkerrechts  anzu- 
sohon,  und  verdienst  dahor  vorziiglicho  Aufmerksamkeit.  .  .  .  Kann 
man  sagon  dass  Zouchaus  der  orste  ist,  der  das  Volkerrecht  in  seinem  ganzen 
thooretischen  spwohl  also  practischen  Umfange  erkannt  und  abgezeichnet 
hat,  und  dahor  in  diesor  Wissenschaft  eine  wichtige  Stolle  einnimmt"'  (Littera- 
tur  des  Volkerrechts,  Rogensburg,  1785,  pp.  252,  253). 


RICHARD   ZOUCHE  247 

arranged  consistently  and  logically,  and  set  forth  in  a  style  marked 
by  precision  and  conciseness.  The  more  doubtful  matter  he 
incorporated  in  its  proper  place,  but  in  the  form  of  questions, 
many  of  which  he  leaves  unsolved,  and  many,  if  not  receiving  a 
categorical  answer,  are  impliedly  answered — even  then  only 
tentatively — by  means  of  examples  and  analogies.  He  does  not 
attempt  profound  analysis,  and  carefully  avoids  metaphysical 
disquisitions  ;  he  is  content  to  be  guided  by  practical  common- 
sense  and  the  necessity  of  time  and  place. 

His  manner  is  characterized  by  modesty  and  reserve,  being  a 
marked  contrast  to  the  vigorous  self-assertiveness  and  dogmatic 
insistence  of  Bynkershoek.  The  work  of  Zouche  is  of  com- 
paratively modest  compass  ;  it  does  not  perhaps  occupy  as  high 
a  position  in  the  evolution  of  international  law  as  the  treatise  of 
Grotius  ;  but  the  English  writer  made  a  distinct  advance  on  his 
predecessor  in  many  respects — e.g.,  the  use  of  the  expressive  "  jus 
inter  gentes,"  and  its  underlying  conception,  the  recognition  of 
the  supremacy  of  conventional  law  over  "  natural,"  the  use  of 
recent  examples  of  custom  and  practice,  the  constant  implication 
of  the  relativity  of  legal  development  to  political  evolution. 
Zouche  is  the  greatest  of  the  earlier  English  school  of  international 
jurists  and  publicists  ;  and  the  subsequent  traditions  of  this  school 
of  writers — not  to  mention  many  Continental  writers  of  the 
positive  school — owe  much  to  his  influence  and  example. 


JEAN  BAPTISTE  COLBERT 

JEAN  BAPTTSTE  COLBERT,*  the  famous  Minister  of  Louis  XIV.,2 
during  the  middle,  and  best,  period  of  the  latter's  reign,3  is 

1  At  the  time  of  his  death  Colbert  was  Marquis  de  Seigneley  et  de  Chateau- 
ncuf  sur  Cher,  Baron  de  Sceaux,  Lumieres,  and  other  places  (see  Jal's  Diction- 
naire  de  Biographic  et  d'Histoire,  tit.  Colbert,  p.  399). 

2  Louis  XIV.'s  principal  merit  is  said  to  have  consisted  in  his  allowing 
himself  to  be  guided  by  such  a  mind  as  Colbert's,  which  was  so  vastly  superior 
to  his  own  (Bonnechose's  History  of  France,  1862.  English  edition,  p.  399).     It 
should,  however,  be  remembered  that  Louis  XIV.  himself  was  a  man  of 
strong  character  and  great  ability,  in  whom  there  was,  according  to  Cardinal 
Mazarin,  the  wherewithal  to  make  four  good  kings  and  one  honest  man 
(Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  4),  while,  in  the  opinion  of  Lord 
Acton,  he  was  by  far  the  ablest  man,  born  in  modern  times,  on  the  steps  oi 
a  throne  (Lectures  on  Modern  History,  by  Lord  Acton,  p.  234),  and  his  reign, 
if  Voltaire  is  to  be  believed,  of  greater  value  to  France  than  twenty  ordinary 
reigns  (Siecle  de  Louis  XIV.,  vol.  18  of  Voltaire's  collected  works,  published 
in  1819,  p.  206). 

3  That  is  to  say,  from  1661  to  1683.     Cardinal  Mazarin  died  on  March  6, 
1661,  and,  on  the  following  day,  Louis  XIV.  summoned  to  the  Louvre  the 
Chancellor  Segnier  and  the  three  Secretaries  of  State — namely,  Nicholas 
Fouquet  (Superintendent  of  the  Finances),  Michael  le  Tellier  (Minister  of 
War),  and  Hugues  de  Lionne  or  Lyonne  (Minister  of  Foreign  Affairs),  to  whom 
he  intimated,  in  the  course  of  an  address,  that  though,  till  then,  he  had 
allowed  the  late  Cardinal  to  govern  the  country,  in  future  he  would  be  his 
own  prime  minister  ("  Je  serai,  a  1'avenir,  mon  premier  ministre  "),  to  whom 
ministers  could,  when  invited  to  do  so,  give  advice.     The  Chancellor  was, 
accordingly,  forbidden  to  seal  any  document  without  the  King's  command, 
while  the  Secretaries  of  State  were  directed  not  to  sign  anything  without  the 
King's  permission  (Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  pp.  549,  550). 
Many  doubted  (and  notably  Fouquet)  whether  the  young  King,  then  only 
twenty-two  and  a  half  years  of  age,  would  persevere  in  his  resolution  hence- 
forward to  govern  in  person.     How  completely  this  doubt  was  falsified  is 
proved  by  the  fact  that  Louis  XIV.  held  the  reins  of  power  in  his  own  hands 
for  fifty-four  years  (i.e.,  till  his  death  on  September  1,  1715),  and  never  once 
relaxed  his  hold  of  them  (Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  4). 
During  this  long  period,  Louis  XIV.,  who  possessed  an  excellent  memory 
and  immense  fertility  of  resource,  devoted  nine  hours  a  day  to  public  business 
(Lectures  on  Modern  History,  by  Lord  Acton,  p.  234).      The  first  eleven  years, 
however,  of  the  young  King's  personal  government  (i.e.,  from  1661  to  1672) 
were  so  much  influenced  by  the  ideas  of  Colbert  that  the  reign  of  Louis  XIV. 
and  the  biography  of  his  great  minister  are  almost  identical  (Cambridge 
Modern  History,  vol.  v.,  p.  15 ;  and  see  Martin's  History  of  France,  4th  ed., 
vol.  xiii.,  p.  35).     It  was  not,  however,  until  1669  that  Colbert  attained  the 
full  rank  of  Secretary  of  State,  though  for  some  years  previously  he  had 

248 


J.  B.  COLBERT, 


JEAN   BAPTISTS   COLBERT 


COLBERT  249 

identified  with  so  many  splendid  achievements l  that  his  claim 
to  recognition,  as  a  jurist  and  law  reformer  is  apt  to  be  somewhat 
overlooked.  To  the  ordinary  student  of  French  history,  Colbert 
figures  as  an  able  and  successful  financier,2  as  the  founder  of  the 

really  conducted  most  of  the  affairs  of  State  (post ;  Martin's  History  of  France, 
4th  ed.,  vol.  xiii.,  pp.  23,  33,  34  ;  Colbert,  Promoteur  des  Grands  Ordonnances  de 
Louis  XIV.,  by  Alfred  Ayme,  p.  11).  In  view  of  these  circumstances,  it  is 
a  little  difficult  to  understand  why  Lord  Acton  should  refer  to  Colbert  as 
though  the  latter  had  been  already,  at  the  date  of  Mazarin's  death,  in  1661, 
a  departmental  minister  (Lectures  on  Modern  History,  by  Lord  Acton,  p.  234), 
though,  undoubtedly,  for  some  little  time  previously  to  the  death  of  Cardinal 
Mazarin,  Colbert  had  secretly  and  unofficially  assisted  Louis  XIV.  in  over- 
hauling Fouquet's  financial  budgets  (see  post),  and,  moreover,  as  far  back  as 
1649,  had  been  appointed  a  Conseiller  d'Etat,  at  the  instance  of  Michael  le 
Tellier,  with  whom  Colbert  was  connected  by  marriage. 

1  See  Lettres,  Instructions,   et  Memoires  de  Colbert,   by  Pierre  Clement, 
vol.  i.,  p.  1.     When,  in  1669,  Colbert  was  appointed  Secretary  of  State,  he 
was  also  given  the  control  of  the  navy,  commerce,  the  colonies,  the  King's 
household,  Paris,  ecclesiastical  matters,  and  the  government  of  L'lle  de 
France,  and  of  L'Orleannais  (Martin's  History  of  France,  4th  ed.,  vol.  xiii., 
pp.  33,  34).     He  then  only  became  the  equal,  in  official  rank,  of  obscure 
ministers  whose  names  history  has  scarcely  preserved  (ibid.).     It  was,  how- 
ever, primarily  as  a  great  financier  that  he  obtained  recognition  as  a  first- 
class  statesman.     But   "  les  finances  n'etaient  pour  Colbert,   qu'un  point 
d'appui,  d'ou  il  allait  saisir  toutes  les  branches  de  la  puissance  publique." 
II  etait  pret  pour  tout,  et  propre  a  tout "  (Martin's  History  of  France,  4th 
ed.,  vol.  xiii.,  p.  32),  and  eventually  obtained  the  control  of  nearly  all  the 
departments  of  government  (Colbert,  Promoteur  des  Grands  Ordonnances  de 
Louis  XIV.,  by  Alfred  Ayme,  p.  11). 

2  When  still  working  behind  the  scenes  and  unknown  to  fame,  Colbert, 
on  August  31,  1659,  wrote  to  Cardinal  Mazarin  that  "  Les  finances  avaient 
grand  besoin  d'une  chambre  de  justice,  severe  et  rigoureuse  "  (Lettres,  In- 
structions, et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  ii.,  part  i.,  p.  xiv) 
and  that  he  could  not  conscientiously  associate  any  longer  with  Fouquet, 
the  Superintendent  of  Finance,  who  had  ceased  to  be  honest  and  devoted 
to  the  State  (ibid.,  p.  v  ;  and  see  Martin's  History  of  France,  4th  ed.,  vol.  xiii., 
p.  24).     The  Cardinal  accordingly,  shortly  before  his  own  death,  advised  the 
King  to  employ  Colbert  to  help  him  secretly  to  discover  Fouquet's  financial 
delinquencies,  a  work  which  Colbert  continued  to  discharge  down  to  Sep- 
tember 15,  1661,  when  Fouquet's  arrest,  which  had  been  decided  upon  some 
months  previously,  took  place  (see  Martin's  History  of  France,  4th  ed., 
vol.  xiii.,  pp.  26,  27,  28  ;    Lettres,  Instructions,  et   Memoires  de  Colbert,  by 
Pierre  Clement,  vol.  ii.,  part  i.,  p.  xiv;  Life  and  Times  of  Louis  XIV.,  by 
G.  P.  R.  James,  vol.  iii.,  pp.  101,  122).     After  a  trial,  which  lasted  practically 
for  four  years,  and  in  which  all  forms  of  law  are  said  to  have  been  violated 
in  order  to  secure  a  conviction,  Fouquet  was,  on  December  20,  1664,  con- 
demned to  perpetual  banishment,  a  sentence  which  was  immediately,  and 
somewhat  harshly,  altered  by  the  King  to  one  of  imprisonment  for  life  (see 
Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  ii.,  part  i., 
pp.  1  et  seq.  ;  Life  and  Times  of  Louis  XIV.,  by  G.  P.  R.  James,  vol.  iii., 
pp.  141,  142),  being,  semble,  the  only  instance  in  the  history  of  modern  Europe 
of  a  monarch  commuting  a  gentler  for  a  severer  punishment  (Life  and  Times 
of  Louis  XIV.,  by  G.  P.  R.  James,  vol.  iii.,  p.  142).     Colbert  and  Le  Tcllier, 
who  are  accused  of  having  entertained  towards  Fouquet  a  vindictive  hatred 
(Mazarin  et  Colbert,  by  the  Comte  de  Cosnac,  vol.  i.,  p.  80),  and  who  certainly 


250  COLBEET 

French  Navy,1  as  the  reviver  of  the  Commerce  of  France,2  as  the 

worked  together  for  his  destruction,  had  hoped  for  Fouquet's  condemnation 
to  death  (ibid.,  pp.  141  et  seq.  ;  Lettres,  Instructions,  et  Memoir es  de  Colbert, 
by  Pierre  Clement,  vol.  i.,  p.  xxvii)  for  high  treason,  a  sentence  which,  in 
view  of  the  evidence  produced  at  the  trial,  would  not,  it  seems,  have  been 
altogether  illegal  and  unwarrantable  (Lettres,  Instructions,  et  Memoires  de 
Colbert,  by  Pierre  Clement,  vol.  ii.,  part  i.,  p.  ii).  Marshall  Turenne,  in 
reference  to  the  part  taken  by  Colbert  and  Le  Tellier  in  the  Fouquet  trial, 
said  :  "  Je  crois  que  M.  Colbert  a  plus  d'envie  qu'il  soit  pendu,  et  que  M.  Le 
Tcllier  a  plus  de  peur  qu'il  ne  le  soit  pas  "  (ibid.,  p.  xxvii).  Colbert's  uncle 
by  marriage,  Henri  Pussort,  seems  to  have  shared  his  nephew's  dislike  of 
Fouquet.  At  all  events  he  spoke  for  four  hours,  with  great  vehemence  and 
passion,  against  Fouquet  at  the  latter's  trial  (Lettres  de  Madame  de  Sevigne, 
1862  ed.,  vol.  i.,  p.  469).  Immediately  after  Fouquet's  disgrace,  Colbert, 
first  in  March,  1661,  as  Intendant  of  Finance,  and  eventually,  in  December, 
1665,  as  Comptroller-General  of  Finance,  proceeded  to  realize  his  projects  of 
financial  reform  (Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  39),  introduced 
into  the  public  accounts  order,  regularity,  and  simplicity,  and  adopted  a  new 
system  of  collecting  revenue.  He  paid  off,  at  the  price  of  their  original 
purchase,  the  Rentes  which  had  been  acquired  by  public  moneylenders,  at 
sums  far  below  their  face  value,  and  endeavoured  to  put  the  State  on  the 
footing  of  a  great  mercantile  community  (see,  generally,  Lettres,  Instructions, 
et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  ii.,  part  i.,  pp.  xiv  et  seq.  ; 
Life  and  Times  of  Louis  XIV.,  by  G.  P.  R.  James,  vol.iii.,  pp.  168  et  seq.). 
Moreover,  he  made  Fouquet's  partizans,  as  they  were  called,  disgorge  the 
public  monies  they  had  appropriated  (ibid.).  By  these  means  Colbert  was 
enabled  to  remit  some  taxation  and  replenish  the  exhausted  exchequer ;  and 
he  eventually  trebled  the  public  revenue,  but  did  not  make  it  depend  on  the 
growth  of  private  incomes  or  the  execution  of  useful  public  works  (Lectures 
on  Modern  History,  by  Lord  Acton,  p.  244).  Owing,  however,  to  the  great  wars 
carried  on  by  Louis  XIV.  during  Colbert's  administration,  the  financial 
condition  of  France  gradually  degenerated,  until  national  insolvency  was  again 
almost  reached,  and  Colbert,  much  against  his  will,  was  obliged  to  revert  to 
measures  for  raising  money,  which  he  had  himself  condemned  when  adopted  by 
Fouquet  (Voltaire's  Collected  Works,  published  in  1819,  vol.  xviii.,  pp.  220, 221). 
1  In  lieu  of  the  thirty  old  ships,  left  by  Cardinal  Mazarin  at  the  time  of  his 
death,  in  1661,  ten  years  later — i.e.,  in  1671 — France  possessed,  thanks  to 
Colbert,  270  battleships  of  all  kinds,  besides  30  galleys,  and  52,000  sailors 
(Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  iii., 
part  i.,  p.  iv),  while  the  sum  annually  spent  on  the  navy,  which,  in 
Mazarin' a  time,  never  exceeded  two  millions  of  livres,  under  Colbert  was 
seldom  less  than  six  times  that  amount  (ibid.).  Colbert  also  established 
ports  and  arsenals,  where  the  fleet  could  repair  any  damage  (ibid.,  p.  viii), 
and  likewise  promoted  1'Ordonnance  pour  La  Marine,  which  was  a  sort  oi 
Marine  Code  (see  post).  His  efforts  on  the  part  of  the  navy  were,  after  his 
death,  maintained  by  his  eldest  son,  the  Marquis  de  Seigneley,  who  succeeded 
to  his  father's  post  as  Minister  of  Marine,  in  which  he  displayed  marked 
ability  (Martin's  History  of  France,  4th  ed.,  vol.  xiv.,  p.  2),  and  during  his 
brief  career  considerably  increased  the  strength  and  power  of  the  navy 
(Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  ii.,  part  i., 
p.  iv).  Colbert  also  provided  for  the  land  defences  of  his  country,  and,  in 
doing  so,  caused  to  be  erected  a  triple  line  of  fortresses,  on  the  north  and 
east  of  France,  for  the  protection  of  the  frontiers  (Biographie  Universelle, 
Ancienne  et  Moderne,  vol.  ix.,  tit.  Colbert,  p.  224;  Lettres,  Instructions,  el 
Memoires  de  Colbert,  by  Pierre  Clement,  vol.  v.,  passim). 

Commerce  did  not  thrive  under  Richelieu  or  Mazarin.     It  was,  however, 
greatly  encouraged  by  Colbert,  who  caused  trading  companies  to  be  estab- 


COLBERT  251 

developer  of  the  French  Colonial  possessions,1  as  the  encourager 
and  protector  of  agriculture,2  as  the  creator  and  restorer  of  great 
public  buildings,3  and  as  the  patron  of  literature,  science,  and 
art.4  And  yet,  though  Colbert  united  in  his  person  all  these 

lished,  which  it  was  declared  all  persons  might  join  without  compromising 
their  nobility  (Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  117).  French 
manufactures,  and  notably  those  of  Lyons  silk,  and  also  for  the  making  of 
the  lace  known  as  Point  de  France,  or  Point  d'AIenyon,  near  which  town 
Colbert  possessed  a  chateau  (Voltaire's  collected  Works,  published  in  1819, 
vol.  18,  p.  190),  and  the  tapestries  Gobelins  and  Beauvais  (ibid.)  were  en- 
couraged by  Colbert,  who  was  also  largely  instrumental  in  founding  the 
manufacture  of  Sevres  porcelain  and  plate  glass  (The  Monarchy  of  France, 
its  Rise,  Progress,  and  Fall,  by  William  Tooke,  F.R.S.,  p.  456.  He  also 
made  several  commercial  treaties.  Moreover,  besides  opening  up  for  naviga- 
tion rivers  which,  according  to  Pascal,  are  "  les  chemins  qui  marche  "  (Lettres, 
Instructions,  et  Memoir es  de  Colbert,  by  Pierre  Clement,  vol.  iv.,  pp.  cxii  et 
seq.),  he  promoted  the  construction,  by  De  Riquet,  of  the  Canal  Languedoc, 
which  connects  the  Bay  of  Biscay  with  the  Gulf  of  Lyons  (ibid.,  p.  Ixxix) 
and  purchased  from  Charles  II.  of  England  the  port  of  Dunkirk,  in  order 
to  receive  the  commerce  of  the  North  (Martin's  History  of  France,  4th  ed., 
vol.  xiii.,  p.  286).  The  economic  precept,  laissez-faire,  was,  it  has  been 
stated,  borrowed  by  the  eighteenth  century  (Lectures  on  Modern  History, 
by  Lord  Action,  p.  12)  from  Colbert,  according  to  whom :  "  La  liberte  est 
1'ame  du  commerce.  II  faut  laissez-faire  les  hommes  qui  s'appliquant  sans 
peine  a  ce  qui  convient  le  mieux  ;  c'est  ce  qui  apporte  le  plus  d'avantage  " 
(Colbert  in  Comptes  Bendus  de  I  Institut,  xxxix.,  p.  93).  L'Ordonnance  du 
Commerce  of  1673  was  mainly  the  work  of  Colbert  (post). 

1  Colbert  reorganized  the  French  colonies  in  Canada,  Martinique,   and 
St.   Domingo,   besides  founding  others  at  Cayenne   and  Madagascar  and 
Pondicherry  (The  Monarchy  of  France,  its  Rise,  Progress,  and  Fall,  by  William 
Tooke,  F.R.S.,  p.  456 ;  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  pp.  113 
et  seq.  ;  Chambers's  Encyclopedia,  vol.  iii.,  p.  337).     The  Code  Noir  (L'Ordon- 
nance Coloniale),  though  issued  after  Colbert's  death,  was  due  to  his  in 
spiration  (post). 

2  See  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  pp.  34,  35  ;  Lettres, 
Instructions,   et  Memoires  de  Colbert,   by  Pierre  Clement,  vol.  iv.,  passim, 
pp.  xl  et  seq.     Colbert  stimulated,  as  far  as  possible,  the  multiplication  of 
cattle  and  the  acclimatization  of  foreign  animals,  and  renewed  the  exemption 
from  seizure  for  taxes,  etc.,  of  cattle  and  beasts  of  burden  (Lettres,  Instruc- 
tions, et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  iv.,  pp.  xlviii,  Ixvii), 
which  exemption  was  first  established  by  Sully  in  the  time  of  Henri  IV. 
(Bachelet's  Les  Grands  Ministres  Francais,  pp.  329  et  seq.). 

3  In  1664  Colbert  became,  by  purchase,  Superintendent  of  Buildings.     Be- 
sides (sorely  against  his  inclination)  transforming  Versailles  from  a  shooting 
lodge  into  a  palace,  enlarging  and  adorning  Les  Tuileries,  the  Louvre,  Fon- 
tainebleau,  St.  Germain,  and  Chambord,  he  greatly  beautified  Paris  (Lettres, 
Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  v.,  p.  xli),  en- 
trusting this  work  mainly  to  the  architects  Perrault  and  Blondel  (ibid.,  p.  xlix). 

*  The  creation  of  the  Academy  of  Inscriptions  and  Medals,  of  the  Academy 
of  Sciences,  of  the  Academy  of  France  in  Rome,  of  the  Academy  of  Archi- 
tecture, and  of  that  of  Music,  are  due  to  Colbert  (Lettres,  Instructions,  et 
Memoires  de  Colbert,  by  Pierre  Clement,  vol.  v.,  p.  liii).  He  also  founded  a 
Professorship  of  Civil  Law  in  1679  (The  Monarchy  of  France,  its  Rise,  Progress, 
and  Fall,  by  William  Tooke,  F.R.S.,  p.  456),  while,  during  his  aclminist ration, 
the  Royal  Library  was  removed  to  a  more  suitable  place,  and  the  books 
were  increased  in  number  from  16,000  to  40,000  (Bonnechose's  History  of 


252  COLBERT 

different  titles  to  historic  fame,  which  some  consider  entitle  him 
to  be  regarded  as  the  greatest  Minister  in  the  annals  of  mankind,1 
without  excepting  even  Sully  and  Richelieu,  not  to  mention 
Mazarin,2  he  was  also  the  promoter  of  the  great  codifying  ordin- 
ances of  Louis  XIV.,3  in  which  character  it  is  proposed  mainly  to 
consider  him  in  this  brief  essay. 

Before,  however,  concentrating  attention  on  this  aspect  of 
Colbert's  public  career,  it  is  desirable  to  give  a  few  particulars  of 
his  life  and  origin.  Jean  Baptiste  Colbert  was  born  at  Rheims 
on  August  29,  1619,4  and  his  parents  were  Nicholas  Colbert  and 
Marie  Pussort.  His  father,  who,  in  the  early  part  of  his  career, 
does  not  appear  to  have  been  always  solvent,5  was  engaged  in 

France,  1862  ed.,  translated  by  William  Robson,  p.  397).  On  May  21,  1667, 
Colbert  was  made  a  member  of  the  Academy  of  France,  and  pronounced  the 
customary  oration  (Lettres,  Instructions,  et  Memoir es,  by  Pierre  Clement, 
vol.  v.,  pp.  Ivii,  Iviii). 

1  Bonnechose's  History  of  France,  1862  ed.,  note  by  translator,  William 
Robson,  p.  399,  where  it  is  stated  that  the  real  glory  of  the  reign  of  Louis  XIV. 
begins  and  ends  with  Colbert,  as  the  glory  of  Thebes  rose  and  fell  with 
Epaminondas.     If  Louis  XIV.  obtained  the  title  of  Great,  it  was  mainly  due 
to  Colbert  (Biographie  Universelle,  Ancienne  et  Moderne,  vol.  ix.,  M.  Colbert, 
p.  223),  after  whose  death  the  monarchy  declined  in  power  and  importance. 

2  Mazarin  has  been  termed  "  the  ablest  and  most  successful  of  Ministers  " 
(Lectures  on  Modern  History,  by  Lord  Acton,  p.  235)  and  "  a  statesman  of 
the  highest  rank  "  (ibid.,  p.  236). 

3  Recueil  General  des  Anciennes  Lois  Fran^aises,  by  Isambert  and  others, 
vol.  xviii.,  p.  103.     According   to   the  President   Renault,  "  Colbert  qui  a 
retabli  les  finances  porta  ses  vues  plus  loin  ;  justice,  commerce,  marine,  police, 
tout  se  ressentit  de  1'esprit  d'ordre  qui  a  fait  le  principal  caractere  de  ce 
ministre  et  des  vues  superieure  dont  il  envisagesit  chaque  parte  du  gouver- 
nement "  (ibid.). 

4  Bachelet's  Les  Grands  Ministres  Frangais,  tit.  Colbert,  p.  368  ;  Lettres 
Instructions,  et  Memoir  es  de  Colbert,  by  Pierre  Clement,  vol.  i.,  p.  xxiii.     The 
baptismal  certificate  for  the  parish  of  St.  Hilaire,  Rheims,  leaves  no  doubt 
as  to  the  date  and  place  of  Colbert's  birth.     Nevertheless,  it  has  been  stated 
that  the  date  of  his  birth  was  August  22,  1619  (Martin's  History  of  France, 
4th  ed.,  vol.  xiii.,  p.  21),  that  he  was  born  in  Paris  in  1619  (Chalmers'  General 
Biographical  Dictionary,  vol.  x.,  p.  15),  and  that  the  event  took  place  at 
Rheims,  but  not  until  1625  (Life  of  Famous  John  Baptist  Colbert,  done  into 
English  in   1695,  p.  3).     In   1825,  on  the  occasion  of  the  coronation  of 
Charles  X.,  there  was  placed,  in  a  house  in  the  Rue  de  Ceres,  near  to  the 
Place  Royale  at  Rheims,  a  tablet  on  which  was  engraved,  in  letters  of  gold, 
the  following  inscription— namely :  "  Jean  Baptiste  Colbert,  Ministre  d'Etat 
sous  Louis  XIV.  est  ne  dans  cette  maison  le  29  Aout,  1619  "  (Lettres,  In- 
structions, et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i.,  pp.  473,  474). 

5  Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i., 
p.  xxiii.     Colbert's  father  is  sometimes  referred  to  as  Nicolas  Colbert  de 
Vandiere  (ibid.).    He  eventually  became  Seigneur  de  Vandiere,  Governor  of 
Fimes,   Maitre  d'Hotel  in  Ordinary  to  the   King   (Biographie    Universelle, 
Ancienne  et  Moderne,  vol.  ix.,  tit.  Colbert,  pp.  208  et  seq.),  and  Tresorier  do 
1' Extraordinaire   des   Guerres   (Bachelet's  Les   Grands   Ministres   Francois, 
pp.  329,  403). 


COLBERT  253 

some  commercial  pursuits  at  Rheims,  and  was  probably  a  cloth, 
wool,  or  silk  merchant,1  though  it  has  been  stated  that  he  was 
first  a  wine  merchant,  and  then  a  clerk  to  a  notary.2  Colbert's 
mother  was  the  sister  of  Henri  Pussort,  who  eventually  became 
a  distinguished  councillor  of  the  Parliament  of  Paris,  and  one 
of  the  two  selected  by  the  King  to  be  "  au  conseil  royal  des 
finances."3  His  association  with  Colbert  in  notable  projects 
of  law  reform  will  presently  be  noticed.4  Colbert  was,  moreover, 
connected  with  Michael  le  Tellier,6  whose  sister  was  the  wife  of 
Colbert's  uncle,  Jean  Baptiste  Colbert  de  Saint  Pouange,6  a  man 
of  considerable  commercial  and  financial  repute,  who  ultimately 
attained  to  high  official  rank.7 

Events  of  Life. — As  regards  Colbert's  remote  ancestry  little  need 
be  said.  When,  indeed,  he  became  famous  as  a  statesman,  efforts 
were  made  to  trace  his  descent  from  a  younger  branch  of  a  noble, 
if  not  royal,  Scotch  family,  supposed  to  have  settled  in  France 
in  the  latter  part  of  the  thirteenth  century.8  This  origin  Colbert 

1  See  Biographie  Universelle,  Ancienne  et  Moderne,  vol.  ix.,  tit.  Colbert, 
pp.  208  et  seq.  ;  Life  of  Famous  John  Baptist  Colbert,  done  into  English,  pub- 
lished 1695,  p.  3 ;  A.  Jal's  Dictionnaire  de  Biographie  et  tf  Histoire  ;  Colbert's 
Life,  by  Clement,  2  vols. 

2  Ibid.     The  author  of  Les  Soupirs  de  la  France  esdave,  published  in  Colbert's 
lifetime,  refers  to  him,  contemptuously,  as  "  fils  d'un  marchand  de  Reims  " 
(Lettres,  Instructions,  et  Memoires  de  Colbert,  supra,  vol.  i.,  p.  467). 

3  See  Martin's  History  of  France,  vol.  xiii.,  p.  77  ;    Memoires  du  Due  de 
Saint-Simon,  vol.  i.,  p.  411. 

4  Post ;  and  see  Clement's  Histoire  de  Colbert,  vol.  ii.,  pp.  291  et  seq.  ;  Precis 
de  V Histoire  du  Droit  Francais,  by  Paul  Viollet,  p.  186. 

5  Le  Tellier  ultimately  became  Chancelier,  and  was  Secretary  of  State 
down  to  1666  (Voltaire's  Works,  published  in  1819,  vol.  xviii.,  p.  36).      His 
son,  Francis  Michael  le  Tellier,  Marquis  de  Louvois,  one  of  the  greatest  of 
French  War  Ministers,  became  Colbert's  great  rival  towards  the  end  of  the 
latter's  public  career.     Louvois  was  the  evil  and  Colbert  the  good  genius 
of  Louis  XIV.  (The  Life  and  Times  of  Louis  XIV.,  by  G.  P.  R.  James,  vol.  iv., 
p.  60  ;  and  see  also  Lectures  on  Modern  History,  by  Lord  Acton,  p.  239). 

6  Lettres,  Instructions,  and  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i., 
p.  xxiv. 

7  See  Nouvette  Biographie  Generate,  vol.  xii.,  pp.  101,  102 ;    Mazarin  et 
Colbert,  by  the  Comte  de  Cosnac,  vol.  i.,  p.  81. 

8  Giles  Menage,  a  genealogist  who  was,  it  may  be  mentioned,  eventually 
deprived  by  Colbert  of  a  pension  (Life  of  Famous  John  Baptist  Colbert,  done 
into  English  in  1695,  p.  228),  pretended  to  have  traced  Colbert's  descent 
from  the  Kings  of  Scotland  (ibid.),  while  Colbert  himself  claimed  to  belong 
to  an  ancient  and  noble  Scottish  family  named  Cuthbert  (Clement's  Life  of 
Colbert,  vol.  i.,  p.  519  ;  Chalmers'  General  Biographical  Dictionary,  vol.  x., 
tit.  Colbert),  a  younger  branch  of  which  was  alleged  to  have  settled  in  Scotland 
in  1281  (Biographie  Universelle,  Ancienne  et  Moderne,  vol.  ix.,  pp.  208,  225). 
Letters  Patent  of  James  II.  of  England,  registered  in  Parliament  May  21 , 
1687,  attest  that  Colbert  was  descended  from  noble  and  illustrious  Scotch 
parents,  on  both  the  paternal  and  maternal  side  (see  Clement's  Histoire  de 


254  COLBERT 

by  no  means  repudiated,  but,  on  the  contrary,  is  suspected  of 
having  endeavoured  to  uphold,  by  somewhat  unworthy  means.1 
It  is,  however,  more  than  probable  that  Colbert's  family  was,  in 
fact,  of  respectable,  but  thoroughly  bourgeois,  origin,2  and  it  is 
certain  that  one  branch  of  it  settled  at  Troyes  and  the  other  at 
Bheims,3  in  both  of  which  cities,  and  also  in  Paris,  members  of 
the  Colbert  family  were  engaged  in  commerce,  and  held  in 
honourable  repute,  in  the  sixteenth  and  seventeenth  centuries.4 
It  should,  however,  in  fairness  be  stated  that,  in  1667,  Colbert 

Colbert,  vol.  i.,  Appendix,  pp.  519-532,  where  the  ancestry  of  Colbert  is  fully 
discussed).  Colbert  bore  on  his  coat  of  arms  a  snake  (Latin,  Coluber  ;  French, 
Couleuvre)  impaled,  in  allusion  to  his  name,  and  the  whole  Colbert  family 
adopted  the  same  device  ( Jal's  Dictionnaire  de  Biographic  et  d'Histoire,  p.  399). 
The  Barons  of  Castelhill  have  been  cited  as  common  ancestors  of  the  Colberts 
of  Scotland  and  France,  and  as  having  the  same  coat  of  arms  (Biographic 
Universelle,  Ancienne  et  Moderne,  vol.  ix.,  tit.  Colbert,  pp.  208  et  seq.).  For 
further  information  as  to  pedigree  of  the  Colbert  family  see  Lettres,  Instruc- 
tions, et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i.,  Appendix,  pp.  467 
et  seq. 

1  It  has  been  stated  on  good  authority  that,  by  Colbert's  orders,  a  stone 
slab  placed  over  the  tomb  of  his  grandfather  (a  wool  merchant),  in  the  Church 
of  des  Cordeliers  at  Bheims,  was  secretly  removed  and  another  substituted 
for  it,  on  which  Colbert  had  had  engraved,  in  old  characters  and  language, 
an  account  of  the  supposed  chivalrous  exploits  of  a  Scottish  knight  (one 
Richard  Colbert),  together  with  the  legend,  "  En  Ecosse  je  eus  le  berceau, 
et  Rheims  m'a  donne  le  Tombeau  "  (Bachelet's  Les  Grands  Ministres  Francois, 
tit.  Colbert,  pp.  329-403  ;  Nouvelle  Biographic  Generate,  vol.  xii.,  pp.  100,  101  ; 
Life  of  Famous  John  Baptist  Colbert,  done  into  English  in  1695,  p.  228 ;  Mazarin 
et  Colbert,  by  the  Comte  de  Cosnac,  vol.  i.,  p.  78  ;  Lettres,  Instructions,  et 
Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i.,  Appendix,  p.  471). 

2  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  21  ;  Mazarin  et  Colbert, 
by  the  Comte  de  Cosnac,  vol.  i.,  p.  81  ;  Lettres,  Instructions,  et  Mtmoires  de 
Colbert,  by  Pierre  Clement,  vol.  i.,  pp.  xxii.     According  to  the  Abbe  Choisy, 
Colbert  had  great  pride  in  ancestry  (Bachelet's  Les  Grands  Ministres  Francois, 
tit.  Colbert,  pp.  329  et  seq.),  but,  nevertheless,  was  honest  enough  to  tell  his 
eldest  son  the  truth  about  his  origin  in    these  words — viz. :   "  Coquin,  tu 
n'es  qu'un  petit  bourgeois,  et,  si  nous  trompons  le  public,  je  veux  au  moins 
que  tu  saches  qui  tu  es  "  (Mazarin  et  Colbert,  by  the  Comte  de  Cosnac,  vol.  i., 
p.  79  ;  Memoires  de  I' Abbe  de  Choisy).     Moreover,  in  writing  to  his  son,  he 
(Colbert)  truthfully  stated :    "  Mon  fils  doit  bien  penser  et  faire  souvent 
reflexion  sur  ce  que  sa  naissance  1'aurait  fait  etre,  si  Dieu  n'avait  pas  beni 
mon  travail  et  si  ce  travail  n'avait  pas  ete  extreme  "  (Lettres,  Instructions, 
et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i.,  Appendix,  p.  468). 

3  Mazarin  et  Colbert,  by  the  Comte  de  Cosnac,  vol.  i.,  p.  81. 

1  Nouvelle  Biographic  Generate,  tit.  Colbert,  vol.  xii.,  pp.  100,  101  ;  Jal's 
Dictionnaire  de  Biographic  et  d'Histoire,  tit.  Colbert.  Colbert's  great-uncle, 
Odoart  Colbert,  who  was  born  in  the  sixteenth  and  died  in  the  seventeenth 
century,  was  originally  a  merchant  of  Troyes,  who  eventually  extended  his 
business  operations  to  Antwerp,  Frankfort,  Lyons,  Venice,  and  Florence, 
where  he  established  branch  houses  for  the  distribution  of  the  products  of 
Champagne  (see  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  pp.  21,  22  ; 
Mazarin  et  Colbert,  by  the  Comte  do  Cosnac,  vol.  i.,  p.  79  ;  Nouvelle  Biographie 
Gcncralc,  supra). 


COLBERT  255 

was,  it  appears,  able  to  furnish  proofs  of  nobility,  which  had  to 
be  produced  to  enable  one  of  his  sons  to  obtain  admission  into 
I'Ordre  de  Malte.1  Probably  such  proofs  were  not  too  critically 
examined  by  officials  only  too  anxious  to  gain  the  thanks  and 
approval  of  a  powerful  Minister. 

Of  Colbert's  childhood  no  reliable  details  are  forthcoming, 
though  it  has  been  affirmed  that  a  profound  reserve  and  im- 
penetrable discretion  distinguished  even  his  earliest  years.2  His 
personal  appearance  can  hardly  have  been  attractive,3  if,  as 
stated  by  some  of  his  contemporaries,  his  mien  was  low,  dejected, 
and  stern,  not  to  say  forbidding.4  In  spite,  however,  of  this 
unprepossessing  external  appearance,  he  was,  as  has  been  re- 
marked, of  the  race  of  lions  and  not  of  foxes,5  though  his  extreme 
caution  and  discretion  may,  in  the  opinion  of  some,  somewhat 
belie  this  description  of  his  character.  Certainly,  if  his  contem- 
poraries are  to  be  believed,  he  was  a  man  of  few  words,  who 
regarded  long  conversations  as  so  much  time  lost,  and  seldom 
returned  a  verbal  answer  to  a  question  of  any  importance  until 
the  proposition  put  before  him  had  been  first  reduced  into  writing 
for  his  more  careful  consideration.6  His  industry  and  attention 
to  business  were  such,  and  his  complete  mastery  of  details  so 
exceptionally  complete  and  accurate,7  that  it  has  been  stated 

1  Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i., 
p.  xxiii. 

2  Eloge  de  Jean  Baptiste  Colbert  (1783),  p.  3.    The  following  anecdote  of 
Colbert's  early  manhood  is  worth  repeating :  When  in  the  service  of  Michael 
le  Tellier  (see  post),  and  by  his  order,  Colbert  delivered  to  Mazarin,  then  at 
Sedan,  a  letter  from  the  Queen  Mother  (Anne  of  Austria).     Colbert  had 
strict  instructions  not  to  leave  the  letter  in  the  Cardinal's  possession,  but  to 
return  with  it,  after  His  Eminence  had  read  it.     Mazarin,  wishing  to  retain 
the  letter,  had  recourse  to  various  stratagems  to  enable  him  to  do  so,  which, 
however,  entirely  failed,  owing  to  Colbert's  firmness  and  fidelity  to  his  trust. 
When,  in  subsequent  years,  Colbert,  on  Le  Tellier's  recommendation,  entered 
the  service  of  Mazarin,  the  latter  remembered  the  incident  just  described, 
but  as  one  wholly  to  Colbert's  credit  (Chalmers'  Biographical  Dictionary, 
tit.  Colbert,  vol   x.,  pp.  15  et  seq.  ;  Life  of  Famous  John  Baptist  Colbert,  done 
into  English  in  1695,  p.  4  ;  Jal's  Dictionnaire  Biographic  et  d'Histoire,  tit. 
Colbert). 

3  See  Mazarin  et  Colbert,  by  the  Comte  de  Cosnac,  vol.  i.,  p.  80.     The  best 
portrait  of  Colbert,  which  hardly  seems  to  justify  written  descriptions  of  his 
personal  appearance,  was  by  Nanteuil  (Martin's  History  of  France,  4th  ed., 
vol.  xiii.,  p.  23). 

4  Life  of  Famous  John  Baptist  Colbert,  done  into  English  in  1695,  p.  3  ;  Jal's 
Dictionnaire  de  Biographic  et  d'Histoire,  tit.  Colbert. 

5  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  23. 

6  Life  of  Famous  John  Baptist  Colbert,  done  into  English  in  1695,  p.  3  ;  Eloge 
de  Jem  Bzpfiste  Colbert  (1783),  p.  3. 

7  Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i.,  p.  xxi. 


256  COLBERT 

of  him  that  no  man  was  ever  more  laborious  and  diligent.1 
Whether  his  apprehension  was  as  quick  as  that  of  Cardinal 
Mazarin  may  perhaps  be  doubted,2  though  it  must  certainly  have 
been  far  above  the  average.  He  slept  but  little,  and  was  most 
temperate  in  his  diet,  and  knew  only  one  sort  of  repose — namely, 
that  experienced  by  change  of  work,  or  by  passing  from  one 
difficult  task  to  one  less  difficult.3  As  a  man's  nickname  some- 
times affords  a  clue  to  his  character,  it  is  perhaps  worth  mentioning 
that  Colbert  was  called  by  some  "  Vir  marmoreus"4  and  that 
Madame  de  Sevigne  dubbed  him  "  Le  Nord,"  and  trembled  at  the 
very  idea  of  seeking  an  audience  of  him.5 

Though  Colbert  was  undoubtedly,  in  the  main,  the  architect 
of  his  own  fortunes,  and  obtained  his  ultimate  promotion  to  the 
highest  ministerial  rank  in  France  by  his  own  personal  merits 
and  exertions,6  he  did,  nevertheless,  owe  his  first  introduction  to 
public  life  to  his  Uncle  Jean  Baptiste  Colbert  de  Saint  Pouange 
(already  mentioned),7  who  rescued  Colbert  from  the  commercial 
career  for  which  he  was  originally  destined,8  and,  in  1648,9  pro- 

1  Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  v., 
p.  Iviii ;  Dictionnaire  de  V Academic,  ed.  of  1694,  Preface.     Like  Napoleon  I. 
(sec  Sloane's  Life  of  Napoleon,  vol.  iii.,  p.  163),  Colbert  never  seems  to  have 
found  the  limit  of  his  capacity  for  work. 

2  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  22. 

3  Memoires  de  Charles  Perrault,  p.  34. 

*  Bachelet's  Les  Grands  Ministres  Francais,  tit.  Colbert,  pp.  329  et  seq. 

6  Ibid.  ;  and  see  Lettres  de  Madame  de  Sevigne  (annotated  edition,  1862), 
vol.  iii.,  p.  33. 

6  Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i., 
p.  xxxi.  Colbert  might  truly  have  exclaimed  with  Corneille,  "  Je  ne  dois 
qu'a  mois  seule,  toute  ma  renomrn6e  "  (Biographic  Universelle,  Ancienne  et 
Moderne,  vol.  ix.,  tit.  Colbert,  pp.  208  et  seq.).  7  Ante,  p.  253. 

8  Mazarin  et  Colbert,  by  the  Comte  de  Cosnac,  vol.  i.,  p.  81 ;  Martin's  History 
of  France,  4th  ed.,  vol.  xiii.,  p.  22.     In  .his  early  youth,  Colbert  was  sent  to 
Paris,  and  then  to  Lyons,  to  learn  commerce,  returning  eventually  to  Paris, 
where  he  passed  from  the  office  of  a  notary  (said  to  have  been  the  father  of 
the  poet  Chapelain)  into  that  of  a  procurator  (procureur),  and  then  became 
a  clerk  "  Chez  un  tresorier  des  parties  casuelles  "  (Martin's  History  of  France, 
4th  ed.,  vol.  xiii.,  p.  22  ;  Mazarin  et  Colbert,  by  the  Comte  de  Cosnac,  vol.  i., 
pp.  79  et  seq.).     Whether  Colbert  was  ever  in  the  service  of  Mazarin's  bankers, 
Cesanni  and  Maserani,  appears  to  be  doubtful  (Mazarin  et  Colbert,  by  the 
Comte  de  Cosnac,  vol.  i.,  p.  81  ;  Biographic  Universelle,  Ancienne  et  Moderne, 
vol.  ix.,  tit.  Colbert,  pp.  208  et  seq.). 

9  This  was  also  the  year  of  Colbert's  marriage  to  the  wealthy  Marie  Charon, 
the  child  of  James  Charon  (Sieur  de  Minars,  and  a  native  of  Blois)  and  of 
Marie  Begon  (bife  of  Famous  John  Baptist  Colbert,  done  into  English  in  1695, 
p.  6 ;  Martin's  History  of  France,  4th  ed,  vol.  xiii.,  p.  22).     By  her  he  had 
nine  children,  who  all  achieved  distinction,  in  the  Government,  Church,  or 
Army  (Bachelot's  Les  Grands  Ministres  Francais,  tit.  Colbert).     One  of  his 
daughters  married  the  Due  de  Chevreuse,  and  the  other  the  Due  de  Beau- 
villiers.     Colbert's  eldest  son,  better  known  as  the  Marquis  de  Seignelay, 


COLBE&T  257 

cured  for  him  employment  under  Michael  le  Tellier.  at  that  time 
either  Comptroller-General  of  Finance  or  Minister  of  War.1 
Under  this  distinguished  statesman,  Colbert,  thanks,  in  no  small 
measure,  to  the  commercial,  legal,  and  financial  training  he  had 
already  received,2  exhibited  great  aptitude  for  business  and  those 
eminent  qualities  of  head  and  heart  which  determined  Le  Tellier 
to  introduce  and  recommend  for  office  his  protege  to  Mazarin,3 
who  soon  gauged  Colbert's  worth,4  and,  besides  entrusting  him 
with  several  delicate  diplomatic  missions,5  eventually  ap- 
pointed him  his  intendant,  and  finally  made  him  one  of  the 
executors  of  his  will6 — so  well  satisfied  indeed  was  Mazarin  with 
Colbert's  supreme  gifts  in  administrative  and  financial  matters,7 

who  by  some  is  said  to  have  owed  his  success  in  life  to  propitious  circum- 
stances rather  than  to  individual  merit  (Lettres,  Instructions,  et  Memoires  de 
Colbert,  by  Pierre  Clement,  vol.  iii.,  part  2,  pp.  ii  and  xli),  while  others  assert 
that  he  was  at  least  as  able  a  man  as  his  father  (Voltaire's  collected  Works, 
published  in  1819,  vol.  xvii.,  p.  35 ;  Lettres  de  Madame  de  Sevigne,  annotated  ed., 
1862,  vol.  ix.,  pp.  582,  583),  hoped,  according  to  a  published  letter  of  Madame 
de  Maintenon,  to  succeed  to  all  his  father's  various  posts  (Lettres,  Instructions, 
et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  iii.,  part  2,  p.  xv ;  Martin's 
History 'tof  France,  4th  ed.,  vol.  xiv.,  p.  2),  and  did,  in  fact,  become  Minister 
of  Marine,  in  which  office  he  rendered  good  service  to  his  country  (ibid.,  vol.  iii., 
part  i.,  p.  iv;  Voltaire's  collected  Works,  published  in  1819,  vol.  xvii.,  p.  35). 
He  only  survived  his  father  seven  years,  dying  November  3,  1690,  aged  thirty- 
nine  (Lettres  de  Madame  de  Sevigne,  annotated  ed.,  1862,  vol.  ix.,  pp.  582,  583). 
Another  son  of  Colbert  was  Marquis  de  Blainville  et  d'Amory,  who  held  certain 
Court  appointments,  of  which  he  was  deprived  in  favour  of  Michael  le  Tellier's 
son,  Louvois  (Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement, 
vol.  iii.,  part  2,  p.  xvi).  One  of  Colbert's  sons  became  Archbishop  of 
Rouen. 

1  Jal's  Dictionnaire  de  Biographie  et  d'Histoire,  tit.  Colbert. 

2  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  22. 

3  Ibid.  Mazarin  et  Colbert,  by  the  Comte  de  Cosnac,  vol.  i.,  p.  81. 

*  Colbert  did  not  at  first  appreciate  Mazarin's  greatness  of  intellect,  though 
he  eventually  estimated  the  Cardinal's  qualities  at  their  true  worth  (Martin's 
History  of  France,  4th  ed.,  vol.  xiii.,  pp.  22,  23). 

5  These  missions  comprised  one  to  Rome  to  Pope  Alexander  VII.,  to  induce 
the  latter  to  restore  to  the  Duchy  of  Parma  the  Duchy  of  De  Castro,  and  to 
help  the  Venetians  (Biographie  Universelle,  Ancienne  et  Moderne,  vol.  ix.,  tit. 
Colbert,  p.  210).     Prior  to  this  mission  Colbert  was  created  Marquis  de  Croissi 
(ibid.),  and  he  eventually  became  Marquis  de  Seignelay,  a  title  subsequently 
borne,  after  Colbert's  death,  by  his  eldest  son. 

6  Mazarin  et  Colbert,  by  the  Comte  de  Cosnac,  vol.  i.,  pp.  iii  et  seq. ;  The 
General  Biographical  Dictionary,  new  edition  by  Alexander  Chalmers,  F.S.A., 
vol.  x.,  tit.  Colbert,  pp.  10  et  seq.  ;  Jal's  Dictionnaire  de  Biographie  etd'Histoire 
p.  395  ;  Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i., 
p.  ci. 

7  As  Richelieu  and  Mazarin  may  be  said  to  have  been  the  founders  of 
political  despotism,  so  Colbert  may  be  regarded  as  the  founder  of  administra- 
tive despotism  (Mazarin  et  Colbert,  by  the  Comte  de  Cosnac,  vol.  i.,  p.  v). 

18 


£58  COLBEftT 

both  in  public  and  private  life,  that,  when  dying,1  he  recom- 
mended Colbert  to  Louis  XIV.  in  the  following  words,  namely  : 
"  Je  vous  dois  tout,  Sire,  mais  je  crois  m'acquitter  en  quelque 
sorte  avec  votre  majeste  en  vous  donnant  Colbert."2  The  King, 
however,  scarcely  needed  this  recommendation  from  his  dying 
Minister,  as,  for  some  time  before  Cardinal  Mazarin's  death, 
Colbert  had  secretly  helped  Louis  XIV.  to  investigate  and  criticize 
Fouquet's  daily  statements  of  account,  and  in  so  doing  had 
revealed  to  the  King  talents  which  were  not  unmixed  with 
genius.3  Still,  it  was  not  until  some  months  after  Mazarin's 
death  that  Colbert  was,  upon  Fouquet's  disgrace,  made  intendant 
of  the  finances,  while  his  appointment  as  Comptroller  General  of 
Finance  was  deferred  until  1665.4  Colbert's  subsequent  career 
was  one  of  rapid  advancement  in  the  public  service,  to  which 
the  age  in  which  he  lived  was  undoubtedly  favourable,  for  the 
constitution  of  France  then  consisted  in  its  being  a  Government 
through  Councils,  to  which,  with  few  exceptions,  neither  birth 
nor  rank  gave  any  right  of  admission.5  Hence  it  was  that 
bourgeois  like  Colbert,  Bossuet,  and  Louvois  were  employed  by, 
and  in  high  favour  with,  the  Grand  Monarque,  who  became  par 
excellence  the  King  of  the  Merchant  Classes,6  and  was  quite 
content  that  his  nobles  should  remain  courtiers  rather  than 
statesmen.  This  policy  may  have  been,  in  part,  dictated  by 

1  Mazarin's  recommendations  of  Colbert  to  Louis  XIV.  are  said  to  have 
been  almost  his  last  words. 

2  Eloge  de  Jean  Baptiste  Colbert,  p.  4  ;  Biographic  Universelle,  Ancienne  et 
Moderne,  vol.  ix.,  tit.  Colbert,  p.  211  ;  Martin's  History  of  France,  4th  ed.,  vol. 
xiii.,  p.  26 ;  Memoires  de  Choisy,  p.  579.     Though  Colbert  did  not  at  first 
esteem  Cardinal  Mazarin,  he  did  at  last  thoroughly  appreciate  his  talents 
and  many  good  qualities  (see  Martin's  History  of  France,  4th  ed.,  vol.  xiii., 
pp.  22,  23). 

3  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  pp.  26,  27  ;  Biographie 
Universelle  et  Moderne,  vol.  ix.,  tit.  Colbert,  pp.  210,  211.     Louis  XIV.  recog- 
nized in  Colbert  "  I'homme  solide,  1'honime  des  choses  serieuses  ;  le  serviteur 
devoue  ;  le  merveilleux  instrument  du  pouvoir  royal,  lo  genie  qui  creait  et 
avait  1'habilite,  de  faire  croire  a  son  inaitre  qu'il  ne  faisait  qu'obeir  aux 
pensees  du  souverain  "  (Jal's  Dictionnaire  Critique  de  Biographie  et  d'Histoire, 
p.  395). 

4  Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  ii., 
part  i.,  p.  xlix. 

6  Cambridge  Modern  History,  vol.  v.,  p.  3  ;  Lettres,  Instructions,  et  Memoires 
de  Colbert,  by  Pierre  Clement,  vol.  i.,  Appendix,  pp.  467  et  seq. 

6  Social  France  in  the  Seventeenth  Century,  by  Cecilc  Hugon,  p.  147  ;  and 
see  Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  vol.  i., 
p.  467,  where  a  passage  is  cited  from  a  work,  published  in  Colbert's  lifetime, 
called  Lea  Scupirs  de  la  France  des  Esdave  qui  aspire  apres  sa  liberte,  complain- 
ing of  the  admission  into  the  Government  of  bourgeois  like  Louvois  and 
Colbert. 


COLBERT  259 

dread  lest  those  who  were  born  in  the  purple  should  in  time,  if 
promoted  to  fill  high  offices  of  State,  become  powerful  enough  to 
attack  and  limit  the  rights  and  prerogatives  of  the  Crown  itself.1 
At  all  events,  it  is  certain  that,  after  Colbert's  death,  and  when 
his  eldest  son,  the  Marquis  de  Seignely,  and  Louvois  were  no 
more,  Louis  XIV.,  with  no  one  of  sufficient  intellect  and  strength 
of  character  to  thwart  him,  reigned  supreme  over  a  Ministry 
composed  of  persons  who  may  fitly  be  described  as  "titled 
clerks."2 

It  is  not  proposed  to  trace  at  greater  length  Colbert's  general 
career  as  a  Minister,  especially  as  its  principal  achievements 
have  already  been  briefly  recorded  on  an  earlier  page  ;3  and, 
moreover,  form  the  subject  of  detailed  notice  in  the  volumes  of 
French  history  and  works  of  general  biography.  Attention 
must,  however,  now  be  called  to  Colbert's  position  as  a  jurist  and 
law  reformer. 

Colbert  as  Law  Reformer. — That  Colbert  should,  amidst  his 
many  other  absorbing  occupations,  covering  at  one  time,  as 
has  been  seen,  the  whole  field  of  departmental  administra- 
tion,4 have  had  time  and  courage  to  initiate  and  superintend 
the  Herculean  task  of  consolidating  and  amending  the  laws  of 
his  country,  may  well  amaze  the  most  strenuous  statesman 
of  modern  times.  He  possessed,  however,  a  powerful  incen- 
tive to  action  in  the  knowledge  that  in  an  age  which,  in 
its  ideals  and  efforts,  both  political  and  literary,  typified  order 
and  authority,5  the  administration  of  justice  throughout 
France,  but  especially  in  the  provinces,  was  both  irregular  and 
corrupt.6  This  was  partly  due  to  the  rival  claims  of  innumerable 
feudal  Courts,  as  against  Royal  Magistrates  and  one  another,7 
for,  notwithstanding  the  encroachments  of  the  Crown  on  its 

1  Introduction  by  Charles  Sarolea  to  Nelson's  abridged  edition  in  French 
of  the  Memoires  du  Due  de  Saint-Simon. 

2  Francois  de  Fenelon,  by  Viscount  St.  Gyres,  p.  45. 

3  Ante,  p.  248. 

4  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  pp.  33,  34  ;  Lettres,  In 
structions  et  Memoires  de  Colbert,  by  P.  Clement,  vol.  i.,  p.  1  ;  Colbert,  Promoteur 
des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred  Ayme,  p.  11.     From  1661  to 
1672  were  the  most  glorious  years  for  Colbert,  and  when  his  ideas  reigned 
supreme  (Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  35). 

5  Cambridge  Modern  History,  vol.  v.,  p.  15. 

6  Ibid.     The  extraordinary  assizes  held  at  Clermont  Ferrand,  called  "  Les 
Grands  Jours  d'Auvergne,"  must  have  revealed  the  existence  of  many  abuses 
calling  for  reform  (Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  pp.  69  et  seq.). 

7  Ibid. 


260  COLBERT 

independence,  feudal  justice  still  subsisted,  though  in  a  confused, 
arbitrary,  and  corrupt  form.1  Moreover,  both  Civil  and  Criminal 
Procedure  were  in  a  more  or  less  imperfect  condition,  and,  in 
the  interest  of  humanity  and  the  speedy  administration  of  justice, 
demanded  simplification  and  reorganization,  while  the  brutality 
of  the  punishments  attached  to  crimes  sorely  needed  mitigation, 
seeing  that,  instead  of  reforming  the  criminal  himself,  or  acting 
as  deterrents,  they  seemed  calculated  to  have,  and  in  fact  had,  a 
precisely  opposite  effect. 

It  was,  then,  in  such  conditions  as  these  that  Colbert,  actuated 
by  noble  and  sincere  motives,  urged  Louis  XIV.  to  signalize,  if 
not  immortahze,  his  reign,  then  already  becoming  famous  on 
other  grounds,  by  giving  his  sanction  and  an  impulse  to  a  great 
scheme  of  legislation,  designed  to  reduce  into  one  body  all  the 
existing  ordinances,2  thereby  rendering  jurisprudence  fixed  and 
certain  throughout  the  entire  kingdom,  and  also  destined  to 
bring  about  a  necessary  reduction  in  the  number  of  persons 
invested  with  judicial  power.3  That  Colbert  did  not  fully  achieve 
all  that  he  hoped  to  accomplish  as  a  law  reformer  was  certainly 
not  his  fault.4  He  did,  however,  initiate  that  codifying  process 
which  eventually  produced  the  Codes  Napoleon,  and  thereby 
aided  the  work  of  bringing  the  customary  law  of  Prance  again 
into  harmony  with  the  Roman  law.5 

From  an  undated  paper  in  Colbert's  handwriting,  which  reveals 
his  idea  of  codification,  it  is  evident  that  he  was  well  aware  that 
such  idea  was  by  no  means  original,  though  he  seems  to  have 
considered  that  Henry  III.  alone,  amongst  previous  French 

1  Cambridge  Modern  History  vol.  v.,  p.  15,     In  the  reign  of  Philip  II.  of 
France  (called  Philip  Augustus)  the  administration  of  justice  by  feudal  lords 
was  curtailed,  and  they  were  no  longer  allowed  to  decide  cases  according  to 
their  mere  caprice,  while,  at  the  same  time,  judges  were  appointed  to  try  and 
determine  causes  in  accordance  with  settled  law. 

2  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme,  pp.  15,  16,  17 ;  Precis  de  VHistoire  du  Droit  Frangais,  etc.,  by  Paul 
Viollet,  p.  185  ;  Cours  Elementaire  d'Histoire  du  Droit  Francois,  2nd  ed.,  by 
Adhemar  Esmein,  p.  785. 

3  Precis  de  VHisloire  du  Droit  Fran^ais,  etc.,  by  Paul  Viollet,  p.  185  ; 
Biographie  Universelle,  Ancienne  et  Moderne,  vol.  ix.,  tit.  Colbert,  p.  216. 

*  See  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme,  p.  17. 

6  Studies  in  History  and  Jurisprudence,  by  James  Bryce,  pp.  107,  376, 
377  ;  Manuel  du  Droit  Franrais,  9th  ed.,  by  Judge  Pailliet,  p.  viii.  Ever 
since  the  discovery,  in  the  reign  of  Louis  VII.  (Le  Jeune),  in  the  twelfth  cen- 
tury, of  a  copy  of  the  Institutes  of  Justinian,  the  Roman  civil  law  had,  in  the 
greater  part  of  Europe,  and  notably  in  France,  become  the  absorbing  study 
of  the  learned. 


COLBERT  261 

Kings,  had  planned  to  reduce  the  whole  of  the  ordinances  of  the 
country  into  a  single  body,1  assigning  the  execution  of  this  task 
to  the  President  Brisson,  who  did  indeed  compile  what  is  termed 
the  "Code  Henry,"  which,  however,  never  came  into  actual 
operation.2 

In  Colbert's  time,  and  indeed  before  the  great  Revolution,  the 
civil  legislation  of  France  was  divided  into  two  general  systems , 
namely,  the  customary  and  the  written  law,  each  of  which 
branched  into  a  multitude  of  subdivisions.3  There  were  upwards 
of  180  customs,  extending  more  or  less  over  the  various  provinces 
of  France.4  In  many  parts  of  the  country,  though  less  in  Provence 
and  Languedoc,  the  Roman  law  had  gone  back  into  that  shape 
of  a  body  of  customs  from  which  it  had  emerged  a  thousand 
years  before,  while  in  Northern  and  Middle  France  some  customs, 
and  especially  those  relating  to  land,  were  not  Roman  at  all.5 
Independently  of  customary  law  and  written  law,  considered  as 
local  law,  France  was  also  governed  by  Roman  law,  the  laws 
of  the  Prince,  and  the  decisions  of  the  local  Parliaments.6 

1  Histoire  de  la  Procedure  Criminelle  in  France,  by  Adheman  Esmein,  p.  173  ; 
Clement's  Histoire  de  Colbert,  vol.  ii.,  p.  297 ;  Manuel  du  Droit  Francais,  9th 
ed..  by  Judge  Pailliet,  p.  xiv.     Ideas  of  codification  have  been  attributed  to 
earlier  French  Kings  than  Henry  III. — namely,  to  Charles  VII.,  Louis  XI., 
and  Henry  II.  (see  The  Civil  Laws  of  France,  by  D.  M.  Aird,  p.  19),  not  to 
mention  Henry  IV.  (Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV., 
by  Alfred  Ayme,   p.   14).     Moreover,  these  royal  projects  of    codification 
were  seconded  by  many  eminent  jurists  of  the  sixteenth  century  in  their 
writings  (ibid.),  while  Colbert  himself  resumed  the  work  at  an  auspicious 

'  moment,  seeing  that  Domat  was  then  composing  his  treatise  on  civil  law 
(ibid.)  and  Lamoignon,  first  President  of  the  Parlement  de  Paris,  was  con- 
templating and  evolving  a  scheme  of  unified  and  general  legislation  for  the 
whole  Kingdom  of  France  (ibid.),  in  which  work  there  was  eventually  asso- 
ciated with  him  the  learned  jurisconsult  Barthelimi  Auzanet  (Precis  de  V His- 
toire du  Droit  Francais,  etc.,  by  Paul  Viollet,  p.  184). 

2  See  authorities  in  preceding  note.     La  Garde  des  Seaux  Marillac  had,  in 
a  measure,  the  same  fate  as  the  Code  Henry  (Histoire  de  la  Code  Criminelle 
en  France,  by  Adhemar  Esmein,  p.  178). 

3  The  Civil  Laws  of  France,  by  D.  M.  Aird,  p.  20. 

*  Ibid.  According  to  one  authority,  before  the  Revolution,  French  legis- 
lation comprised  not  less  than  fifty  general  customs  and  225  local  customs, 
without  taking  into  account  those  provinces  which  were  under  the  written 
law  (Dictionnaire  Usuel  de  Droit,  by  Max  Legrand,  avocat,  tit.  Code,  p.  189). 

5  Studies  in  History  and  Jurisprudence,  by  James  Bryce,  p.  107. 

6  The  Civil  Law  of  France,  by  D.  M.  Aird,  p.  19.     The  "  Parlements  "  must 
not  be  confounded  with  Les  Etats  Generaux  (National  Assemblies),  which  were 
summoned  at  uncertain  intervals  by  the  King,  and  in  some  reigns  not  at 
all,  though  they  alone  were  supposed  to  grant  subsidies  to  the  Crown  and 
sanction  the  levying  of  contributions  from  the  people  (see  Judge  Pailliet's 
Manuel  du  Droit  Francais,  vol.  L,  p.  x).     Les  Parlements  were  Courts  of 
Justice,  and  the  first  of  these  to  be  established  was  the  Parlement  de  Paris, 
in  the  year  1302,  by  Philip  IV.  (Le  Bel),  down  to  which  time  a  Court  of  Justice 


262  COLBERT 

Having  once  secured  the  King's  sanction  and  approval  of  his 
scheme  for  the  amendment  and  codification  of  the  law,1  Colbert 
lost  no  time  in  carrying  it  into  execution,  and  at  once  proceeded 
to  settle  the  essential  preliminaries.2  Accordingly,  a  Council  was 
created  to  make  all  needful  preparations,  to  discover  and  discuss 
existing  defects  and  abuses,  and  to  devise  remedies  for  them.3 
Two  classes  of  persons  only  were,  in  the  first  instance,  employed 
as  members  of  this  Council — namely,  eminent  jurisconsults  and 
members  "  du  Conseil  du  Roi,"  to  the  exclusion  of  such  members 
of  the  Parlement  de  Paris  4  as  were  not  ministers,  and  also  to  the 
exclusion  of  the  judicial  body  (Les  Corps  Judiciaires).6  This 
Council,  termed  the  Conseil  de  Justice,  was  subdivided  into 
three  sections.6  Of  these,  the  first  had  assigned  to  it  ecclesiastical 

from  the  earliest  period  followed  the  person  of  the  King,  a  practice  which 
was  found  to  be  irksome,  and  led  to  the  gradual  establishment  of  eleven 
Sovereign  Courts  or  Parlements,  in  various  parts  of  France  (The  Monarchy 
of  France,  its  Rise,  Progress,  and  Fall,  by  William  Tooke,  F.R.S.,  p.  208). 
In  1674,  Louis  XIV.  himself  gave  Parlements,  or  Sovereign  Courts,  to  Tranche 
Comte  at  Dol,  and  afterwards  at  Besan9on  (ibid.).  For  a  very  interesting 
account  of  "  Le  Parlement  de  Paris  et  les  autres  sur  son  modele,"  see  Memoires 
du  Due  de  Saint-Simon,  1857  ed.,  vol.  xi.,  chap.  17,  pp.  306  et  seq. 

1  Colbert  communicated  his  plan  to  Louis  XIV.  about  the  year  1664  or 
1665  (Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar  Esmein, 
p.  180).     Louis  XIV.  was  in  the  habit  of  attributing  to  himself  the  primary 
idea  of  Codifying  Ordinances  (ibid.,  p.  177). 

2  Ibid.  ;  and  see  Colbert,  Promoteur  des  Grand  Ordonnances  de  Louis  XIV., 
by  Alfred  Ayme,  pp.  15  et  seq.     The  Ordonnance  Civile  was  prepared  with 
the  greatest  solemnity  (Eecue.il  General  des  Anciennes  Lois  Francoises,  vol. 
xviii.,  p.  103).     These  preliminaries  about  to  be  described  were  prior  to  the 
issue  of  the  Ordonnance  Civile,  but  the  history  of  this  Ordinance  may  be ' 
regarded  as  the  history  of  all  the  ordinances,  and  especially  of  the  Ordonnance 
Criminelle  of  1670  (Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar 
Esmein,  p.  206). 

3  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme,  p.  17  ;  and  see  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  pp.  67 
et  seq. 

4  Precis  de  V Histoire  du  Droit  Francais,  by  Paul  Viollet,  p.  186  ;    Cours 
Elementaire  d' Histoire  du  Droit  Francois,  by  Adhemar  Esmein,  2nd  ed.,  pp.  785 
et  seq.     The  dislike  conceived  by  Louis  XIV.  and  Colbert  to  the  Parlement 
do  Paris,  and  to  some  of  the  Provincial  Parlements,  dated  from  the  troublous 
limes  of  the  Fronde,  when  grave  excesses  were  committed  which  were  con- 
nived at  if  not  inspired  by  les  Parlements  (Lettres,  Instructions,  et  Memoires 
de  Colbert,  by  Pierre  Clement,  vol.  i.,  p.  xx).     Colbert  is  supposed  to  have 
meditated  fatal  designs  against  the  Parlement  de  Paris,  and  partly  on  this 
account  had  no  wish  to  associate  any  of  its  members  in  his  proposed  legislative 
reforms  (Precis  de  V Histoire  du  Droit  Francois,  by  Paul  Viollet,  p.  186  ;  His- 
tmre  de  la  Procedure  Criminelle  en  France,  by  Adhemar  Esmein,  p.  179). 

Cours  Elementaire  d1  Histoire  du  Droit  Francais,  by  Ahhemar  Esmein,  2nd 
cd..  pp.  785  et  seq. 

6  Colbert.  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Avme,  p.  17;  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar 
Esmein,  p.  179. 


COLBERT  263 

affairs,  the  second  matters  concerning  the  nobility,  while  to  the 
third  section  was  relegated,  in  a  special  manner,  all  that  related 
to  civil  and  criminal  justice  and  police.1  Colbert  was  himself  a 
member  of  the  last-named  section,  at  the  sittings  of  which,  in  his 
absence,  his  ideas  and  wishes  were  ably  represented  and  ex- 
pounded by  his  uncle,  Henri  Pussort,2  in  whom  he  had  complete 
confidence.3 

To  aid  the  Council  in  its  work,  and  to  enable  it  to  fulfil  its  duties 
effectually,  by  Colbert's  advice,  given  to  the  King,  memoranda 
were  obtained  from  legal  experts  in  various  parts  of  the  country 
detailing  the  abuses  to  be  remedied  and  suggesting  remedies.4 
Moreover,  also  by  Colbert's  advice  and  direction,  inquiries  were 
set  on  foot  among  recognized  and  effective  bodies  (Corps  Compe- 
tents)  with  a  view  to  obtaining  valuable  and  reliable  information, 
and,  further,  while  the  Council  was  maturing  its  projects,  eight 
able  and  trustworthy  Maitres  des  Requetes5  were  despatched  to 
do  duty  in  all  the  "Parlements  du  Royaume,"6  to  ascertain  and 
receive  complaints  and  criticisms,  and  to  forward  same  to  the 
Conseil  de  Justice,  certain  members  of  which  were  specially 
deputed  to  receive  all  reports  and  communications  from  the 
Maitres  des  Requetes,  and  to  maintain  a  regular  correspondence 
with  them.7 

The  first  sitting  of  the  Conseil  de  Justice  is  said  to  have  taken 
place  after  Mass  on  September  25,  1665,8  at  the  Louvre,  in  the 

1  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  p.  17. 

2  Ibid. ;  and  see  Precis  de  r  Histoire  du  Droit  Francais,  by  Paul  Viollet, 
p.  186. 

3  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  77. 

4  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  p.  17  ;  Precis 
de  r  Histoire  du  Droit  Francois,  by  Paul  Viollet,  p.  186.     These  memoranda 
still  exist  in  the  Bibliotheque  Nationale  (Histoire  de  la  Procedure  Criminelle 
en  France,  by  Adhemar  Esmein,  p.  180).     Of  these  memoranda  Henri  Pussort's 
was  the  only  one  to  which  Colbert  attached  real  importance  and  which  he 
analyzed  (ibid.). 

5  They  received  special  instructions  from  Colbert  himself  (Colbert,  Promo- 
teur des  Orandes  Ordonnances  de  Louis  XIV.,  by  Alfred   Ayme,  p.  17).     A 
Maitre  des  Requetes  was  a  member  of  the  Council  of  State,  next  in  rank  to 
a  counsellor. 

6  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar  Esmein,  p.  194. 

7  Ibid. ;  and  see  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XI V.,  by 
Alfred  Ayme,  p.  17. 

8  There  appears  to  be  some  difference  of  opinion  in  regard  to  the  date  of 
the  first  sitting.     Thus,  while  the  date  given  in  the  text  is  vouched  for  by 
one  authority  (Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar 
Esmein,  p.  194),  according  to  another  authority  the  first  sitting  took  place 
on  October  10, 1665  (Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  77,  note  1 ), 
while  October  28,  1666,  has  also  been  mentioned  as  the  correct  date  (ibid.  ; 
Isambert's  Recueil  General  des  Anciennes  Lois  Francises,  vol.  xviii.,  p.  104). 


264  COLBERT 

King's  study,  and  in  the  presence  of  Louis  XIV.,  who  presided  over 
it  in  person,  and  delivered  an  allocution.1  From  that  moment 
the  great  work  may  be  said  to  have  commenced,  and  it  was 
continued,  without  interruption,  to  its  conclusion  and  achieve- 
ment.2 The  Conseil  used  to  assemble  at  least  every  fifteen 
days  (and  generally  under  the  presidency  of  the  King  himself), 
when  the  articles  adopted  by  the  Commission  de  Justice3  were 
submitted  for  deliberation.4 

The  second  sitting,  which  was  also  held  at  the  Louvre  in  the 
King's  presence,  took  place,  it  is  believed,  on  October  11,  1665,6 
and  seems  to  have  been  a  notable  one.6  It  was  at  this  sitting 
that  Louis  XIV.  interrogated  the  different  members  of  the  Conseil 
de  Justice,  asked  each  of  them  his  advice,  and  decided  to  divide 
the  matters  in  hand  into  principal  heads,  confiding  each  of  these 
to  two  or  more  members,  who,  after  discussing  them  with  some 
famous  advocates,  were  required  to  report  their  views  thereon 
to  the  King,  to  whom  the  final  decision  was,  however,  reserved.7 
Colbert  himself  also  spoke  at  great  length  on  the  same  occasion, 
praising  the  King  and  expounding  in  detail  the  scheme  recom- 
mended for  adoption.8 

It  is  quite  unnecessary  to  refer  to  each  of  the  several  sittings 
held  by  the  Conseil  de  Justice,  but  it  should  be  noted  that  it 
was  not  until  January  26,  1667,  that,  by  the  King's  express 

1  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar  Esmein,  p.  194. 
At  this  first  sitting,  besides  the  Chancellor  Seguier,  who  knew  so  little  of  the 
project  in  hand  that  he  appears  to  have  blundered  somewhat  (Histoire  de  la 
Procedure  Criminelle  en  France,  by  Adhemar  Esmein,  p.  194),  there  were 
present  MM.  Voisin,  Hotman,  de  Villeroy,  d'Aligre,  le  Tellier,  de  Lyonne, 
de  Verthamon,   Poucet,  Boucherat,  et  Henri  Pussort  (Precis  de  V Histoire 
du  Droit  Francois,  by  Paul  Viollet,  p.  186  ;  Histoire  de  la  Procedure  Criminelle 
en  France,  by  Adhemar  Esmein,  p.  195). 

2  Histoire  de  la  Procedure  Criminelle  en  France,   by  Adhemar  Esmein, 
pp.  194,  198. 

3  See  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme,  p.  19. 

4  It  has  been  stated  that  the  sittings  of  the  Conseil  de  Justice  commenced 
October  28,  1666,  and  continued  every  week,  and  sometimes  lasted  for  many 
days,  down  to  February  10,  1667  (Isambert's  Recueil  General  des  Anciennes 
Lois  Francaises,  vol.  xviii.,  p.  104). 

5  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar  Esmein,  p.  196. 
Those  who  differ  as  to  the  date  of  the  first  sitting  of  the  Conseil  de  Justice 
must  obviously  also  be  taken  as  disputing  the  dates  of  the  second  and  some 
of  the  subsequent  sittings. 

6  Ibid.     MM.  d'Estampes,  de  Morangis,  and  de  Seve  figure,  for  the  first  time, 
at  this  second  sitting  of  the  Conseil  de  Justice,  while  M.  Poucet's  name  dis- 
appears (ibid.). 

7  Prf-cis  de  VHistoire  du  Droit  Francais,  by  Paul  Viollet,  p.  186. 

Histoire  de  la  Procedure  Criminelle  en  France,  by  (Adhemar  Esmein,  p.  198. 


COLBERT  265 

command,  Lamoignon,  the  First  President  of  the  Parlement  de 
Paris,  who  had  previously  explained  to  Louis  XIV.  his  own  ideas 
on  codification,1  appeared  at  the  Conseil  de  Justice,  accom- 
panied by  an  imposing  deputation  of  Presidents  of  Courts  of 
Justice  in  their  robes  of  office,  and  wearing  their  judicial  caps.2 
From  this  period  the  Conseil  de  Justice  represented  both  the 
Parlement  de  Paris  and  the  Conseil,  and  continued  its  work, 
mainly,  if  not  invariably,  in  the  house,  and  largely  under  the 
direction,  of  the  Chancellor  Seguier.3  The  Members  of  the 
Parlement  de  Paris  were,  however,  not  permitted  to  take  part 
in  the  preparatory  labours  undertaken  in  respect  of  all  the  codi- 
fying ordinances  promoted  by  Colbert,  but  only  in  respect  of 
those  relating  to  the  Civil  and  Criminal  Ordinances.4  The  other 
ordinances  were,  it  appears,  framed  in  strict  accordance  with 
Colbert's  original  plan,  which  completely  ignored,  for  purposes 
of  consultation,  the  members  of  the  Parlement  de  Paris.5 

It  was  during  the  sittings  of  the  Conseil  de  Justice,  and  while 
the  Civil  and  Criminal  Ordinances  were  under  discussion,  that 
the  ancient  independence  of  the  Parlement  de  Paris,  admirably 
defended  by  its  First  President,  Lamoignon,  seemingly  against 
Henri  Pussort,  but,  in  fact,  against  Colbert  and  Louis  XIV.,6 

1  Precis  de  VHistoire  du  Droit  Franc.ais,  by  Paul  Viollet,  pp.  185, 186, 187. 

2  Isambert's  Recueil  General  des  Anciennes Lois  Francaises,  vol.  xviii.,  p.  104, 
note  1  ;  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme,  p.  19  ;  Precis  de  VHistoire  du  Droit  Francais,  by  Paul  Viollet,  p.  187  ; 
These  Presidents  of  Courts  of  Justice  were,  on  account   of  their  headgear, 
termed  "  Presidents  a  Mortier  "  (ibid.). 

3  Precis  de  VHistoire   du   Droit  Francais,  by  Paul  Viollet,  pp.  186,  187. 
The  first  of  these  sittings  in  Chancellor  Seguier's  house  was  held  on  January  26, 
1667,  and  the  last  on  March  17  of  same  year  ;  there  were  altogether  fifteen  of 
these  sittings  (Isambert's  Recueil  General  des  Anciennes  Lois  Franqaises,  vol. 
xviii.,  p.  104,  note  1).     While  the  sittings  of  the  Conseil  de  Justice  were  being 
held,  six  advocates,  designated  by  the  King  for  the  purpose,  prepared  "  les 
elements,"  and,  together  with  the  First  President  and  members  of  the  Parle- 
ment de  Paris,  discussed  the  titles  and  articles  of  the  proposed  ordinance 
(Clement's  Histoire  de  Colbert,  vol.  ii.,  pp.  304  et  seq.  ;  Histoire  de  la  Procedure 
Criminelle  en  France,  by  Adhemar  Esmein,  p.  192 ;  Lettres,  Instructions,  et 
Memoires  de  Colbert,  by  Pierre  Clement,  vol.  vi.,  p.  21). 

4  Cours  Elementaire  d'Histoire  du  Droit  Franchise,  2nd  ed.,  by  Adhemar 
Esmein,  p.  788. 

5  Ibid.  ;  and  see  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  77. 

6  Louis  XIV.'s  recollection  of  the  excesses  committed  during  the  Fronde, 
which  obliged  him  to  quit  his  capital  and  go  from  province  to  province  in 
order  to  assist  at  the  siege  of  the  revolted  towns,  caused  him,  whon  he  became 
his  own  master,  to  punish  "  les  Parlements,"  and  especially  "  lo  Parlement 
de  Paris,"  as  the  inciters,  if  not  the  authors,  of  the  riots  and  insurrections  ; 
in  thus  acting  he  was  supported  by  Colbert  (Lettres,  Instructions,  et  Memoires 
de  Colbert,  by  Pierre  Clement,  vol.  i.,  p.  xx). 


266  COLBERT 

expired.1  Nevertheless,  the  Parlement  itself  emerged  from  this 
ordeal,  stricken  indeed,  but  still  alive,  while  Lamoignon,  its 
discreet  First  President,  on  the  day  that  the  first  of  the  Ordinances 
(L'Ordonnance  Civile)  was  registered,  was  still  able  to  reserve  to 
the  Parlement  de  Paris  the  right  of  remonstrance,  but  veiled 
indeed  by  such  necessary  and  delicate  flatteries  as  were  exacted 
by  the  presence  of  an  autocratic  sovereign2  who,  in  1673,  com- 
pletely abrogated  such  rights.3 

The  history  of  the  discussions  which  took  place  at  all  the 
different  sittings  of  the  Conseil  de  Justice  is  not  fully  known, 
though  the  subsequent  conferences  between  the  members  of  such 
Conseil  and  the  delegates  of  the  Parlement  de  Paris  were  even- 
tually published,  and  afforded  means  for  the  correct  interpreta- 
tions of  the  Ordinances  themselves  when  issued.4 

The  Ordinances. — It  was  on  April  20,  1667,  that  the  first 
of  the  Codifying  Ordinances — that  is  to  say,  L'Ordonnance 
Civile,  sometimes  called  the  Code  Louis5  —  was  registered,6 
and  without  the  necessity  of  any  lit  de  justice  being  held  by 
the  King  to  compel  its  registration.7  This  Ordinance,  which 
was  in  itself  a  veritable  Code  of  Procedure,8  contained  thirty- 

1  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar  Esmein,  p.  187. 

2  Precis  de  V Histoire  du  Droit  Francois,  by  Paul  Viollet,  p.  187. 

3  Ibid.,  p.  189. 

*  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar  Esmein,  p.  194. 
5  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  78. 

8  Ibid.,  p.  186  ;  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV., 
by  Alfred  Ayme,  pp.  19,  20. 

7  When  a  Parlement  refused  to  register  an  Ordinance,  Edict,  or  Declaration, 
a  lit  de  justice,  or  seance  royale,  was  held,  at  which  the  King,  by  his  own 
absolute  authority,  compelled  the  registration,  in  his  presence,  of  any  such 
Ordinance,  Declaration,  or  Edict  (Manuel  de  Droit  Francais,  9th  ed.,  by 
Judge  Pailliet,  p.  x).     Ordinances  and  Edicts  came  into  operation  on  the 
day  of  their  registration  (ibid.,  p.  ix).     From  the  time  of  Louis  IX.  (Saint 
Louis),  the  laws  which  previously  had  been  called  Capitularies  and  Etablisse- 
ments  were  termed  Ordinances  or  Edicts  (ibid.),  and  these  were  addressed 
to  the  Parlements  and  Sovereign  Councils  to  publish  and  transcribe  on  their 
Registers  (ibid.).     Declarations  were  letters  patent,  issued  by  the  King,  which 
applied,  reformed,  or  revoked  Edicts  or  Ordinances,  and,  like  them,  had  to 
be  registered  (ibid.).     Les  Arrets  du  Conseil,  which  were  issued  by  the  King, 
mero  motu,  interpreted  Edicts,  Ordinances,  and  Declarations  (ibid.).     Often 
the  Parlements  and  Sovereign  Councils  addressed  remonstrances  to  the  King 
on  particular  Edicts,  Ordinances,  and  Declarations  before  registering  them, 
or  only  registered  them  with  certain  restrictions  and  modifications,  so  that 
an  article  rejected  by  one  Parlement  or  Sovereign  Council  was  sometimes 
accepted  by  another  (ibid.,  p.  x).     Thus  L'Ordonnance  Civile  of  1667  and 
L'Ordonnance  Criminelle  of  1670  were  not  received  in  Lorraine  (ibid.).     The 
right  of  remonstrance  was  abolished,  in  the  case  of  the  Parlement  de  Paris  at 
all  events,  in  1673  (supra). 

8  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  178. 


COLBERT  267 

five  articles.  The  Preamble1  and  first  eight  Titles  were,  at 
the  time,  considered  to  be  of  the  highest  legal  and  political 
importance,2  while  the  entire  Ordinance,  which  it  is  not,  how- 
ever, proposed  to  examine  in  detail,  aimed,  like  those  which 
were  subsequently  issued,  at  producing  a  complete,  systematic, 
and  detailed  codification  of  a  branch  of  law  of  wide  and  general 
importance.3  According  to  the  intentions  of  its  framers  and 
editors,  this  particular  Ordinance  was  principally  designed  to 
diminish  the  length  of  lawsuits,  to  reduce  their  cost,  and  also 
to  simplify  procedure.4  Its  very  first  article  was  styled  "de 
1'observation  des  ordonnances,"  and  provided  that  all  Ordinances, 
Edicts,  and  Declarations  are  to  be  "gardees  et  observees  par 
toutes  nos  cours  de  parlement,  grand  conseil,  chambres  des 
comtes,  cours  des  aides  et  autres  nos  cours,  juges,  magistrats, 
officiers,  tant  de  nous  que  des  seigneurs,  et  par  tout  nos  autres 
sujets,  meme  dans  les  officialites,"5  and  further  declares  "tous 
arrets  et  jugements,  qui  seront  donnes  contre  le  disposition  de 
nos  ordonnances,  edits,  et  declarations,  mils  et  de  nul  effet  et 
valeur  ;  et  les  juges  qui  les  auront  rendus,  responsables  des 

1  The  Preamble  was,  in  substance,  as  follows :  "  Louis,  &c.  .  .  .     Comme 
la  justice  est  la  plus  solide  fondement  de  la  duree  des  etats,  qu'elle  assure  le 
repos  des  families  et  le  bonheur  des  peuples,  nous  avons  employe  tous  nos 
soins  pour  la  retablir  par  1'autorite  des  lois  au — dedans  de  notre  royaume 
apres  lui  avoir  donne  la  paix  par  la  force  de  nos  armes — c'est  pourquoi,  ayant 
reconnu,  par  le  rapport  de  personnes  de  grande  experience,  que  les  ordon- 
nances sagement  etablies  par  les  rois  nos  predecesseurs  pour  terminer  les  proces 
etaient  observees  differemment  en  plusieurs  de  nos  cours,  ce  qui  causait 
la  ruine  des  families  par  la  multiplicite  des  procedures,  les  f rais  des  poursuites, 
et  la  variete  des  jugements  ;  et  qu'il  etait  necessaire  d'y  pourvoir,  et  rendre 
I'expedition  des  affaires  plus  prompte,  plus  facile,  et  plus  sure,  par  le  retran- 
chant  de  plusieurs  delais  et  actes  inutiles,  et  par  1'etablissement  d'un  style 
uniforme  dans  toutes  nos  cours  et  sieges.     A  ces  causes  de  1'avis  de  notre 
conseil  et  de  notre  certaine  science,  pleine  puissance,  et  autorite  royale,  nous 
avons  dit  declare,  et  ordonne,  disons,  declarons,  et  ordonnons,  et  nous  plait 
ce  qui  ensuit "  (Recueil  General  des  Anciennes  Lois  Francaises,  by  Isambert 
and  others,  1829,  vol.  xviii.,  pp.  103,  104,  105). 

2  Precis  de  VHistoire  du  Droit  Francais,  by  Paul  Viollet,  p.  186.     The 
following  are  the  headings  of  the  eight  Articles  referred  to  in  the  text — namely : 
I.  De  1'observation  des  ordonnances ;  II.  Des  ajournements  ;  III.  Des  delais 
sur  les  assignations  et  ajournements  ;  IV.  Des  presentations  ;  V.  Des  Conges 
et  defauts  en  matiere  civile  ;  VI.  Des  fins  de  non-proceder ;  VII.  Des  delais 
pour  deliberer  ;  VIII.  Des  garans  ( Isambert' s  Recueil  General  d* Anciennes 
Lois  Francaises,  vol.  xviii.,  pp.  105  et  seq.). 

3  Cours  Elementaire  du  Histoire  du  Droit  Franchise,  2nd  ed.,  by  Adhemar 
Esmein,  p.  785.     This  method   of   Codification   introduced  by  Colbert  was 
afterwards  continued  in  the  reign  of  Louis  XV.  (ibid.). 

*  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme,  p.  22. 

5  Title  I.,  art.  1  (Isambert's  Recueil  General  des  Anciennes  Lois  Francoises, 
vol.  xviii.,  p.  106). 


268  COLBERT 

dommages  et  interets  des  parties,  ainsi  qu'il  sera  par  nous  avis^.1 
The  length  in  point  of  time  of  adjournments  before  the  various 
civil  tribunals  was  likewise  prescribed  by  this  Ordinance,2  which 
also  forbad  the  use  of  certain  dilatory  pleas,  which  experience 
had  proved  to  result  in  the  needless  prolongation  of  trials  arid 
increase  of  costs.3  Moreover,  hi  order  to  stifle  at  an  early  stage 
of  a  lawsuit  useless  and  unfounded  litigation,  litigants  were, 
by  the  same  Ordinance,  obliged  to  supply  copies  of  the  proofs 
on  which  they  relied  in  support  of  their  cases.4  L'Ordonnance 
Civile  also  carefully  regulated  and  defined  the  right  and  limits  of 
appeal  from  one  court  to  another,  reduced  the  time  for  the 
exercise  of  such  right  from  thirty  years  to  three  years  and  six 
months,5  and  prescribed  the  cases  in  which  judges  might  be 
challenged.6  By  the  same  Ordinance,  a  distinction  was  estab- 
lished between  commercial  debts  and  civil  debts,  and  the  enforcing 
of  the  latter,  by  means  of  corporal  restraints,  regulated  and 
restricted.7 

With  regard  to  the  holding  of  inquiries  by  witnesses  (Enquetes)  ,8 

1  Title  I.,  art.  8  (Isambert's  Recueil  General  des  Ancienne-s  Lois  Francoises, 
vol.  xviii.,  pp.  106,  107).     This  particular  article  was  stoutly  resisted  by 
Lamoignon,  First  President  of  the  Parlement  de  Paris,  and  other  Parliamentary 
deputies,  as  being  derogatory  of    the  dignity  and  honour  of  the  judicial 
Bench  (Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme.  pp.  20,  21).     This  want  of  confidence  in  the  Judges  is  also  indicated 
by  an  Edict  of  1673,  prohibiting  Judges  from  taking  fees  or  salaries  in  excess 
of  the  sum  prescribed  by  law,  and  which  the  First  President  of  the  Parlement 
was  required  to  fix,  until  the  financial  condition  of  the  State  could  permit  of 
gratuitous  administration  of  Justice  (Anciennes  Lois  Francoises,  Tit.  XIX. 
p.  86).     By  Title  II.,  art.  14  of  the  Ordonnance  Civile,  Ushers  and  Bailiffs 
were  required  to  be  able  to  read  and  write. 

2  Ord.  Civ.,  Tit.  II.  ;  and  see  Colbert,  Promoteur  des  Orands  Ordonnances  de 
Louis  XIV.,  by  Alfred  Ayme,  pp.  22,  23. 

3  Ord.  Civ.,  Tit.  VI.,   IX.,  and   XIV. ;  and   see    Colbert,  Promoteur  de 
Grands  Ordonnances  de  Louis  XIV.,  by  Alfred  Ayme,  p.  25. 

4  Ord.  Civ.,  Tit.  II.,  art.  6  ;  Tit.  III.,  art.  5.     These  proofs  were  termed 
pieces  justificatives. 

5  Ord.  Civ.,  Tit.  XXVII.,  art.  12. 

6  Ibid...  Tit.  XXIV.  7   Tbid^  Tit  XXXIV. 

8  Ord.  Civ.,  Tit.  XXII.  In  the  early  history  of  the  French  Courts  the 
maxim,  "  Temoins  passent  lettres,"  prevailed  (Boddington's  French  Law  of 
Evidence,  p.  92),  but,  gradually,  by  various  causes,  including  the  spread 
of  printing  and  writing,  the  rule  contained  in  this  maxim  was,  in  February, 
1/566,  reversed  by  Article  54  of  L'Ordonnance  sur  la  reformo  de  la  justice 
(commonly  called  L'Ordonnance  de  Moulin  de  1566).  Accordingly,  even  at 
the  present  day,  in  Civil  (as  distinguished  from  Criminal)  Causes  in  France 
witnesses  give  their  testimony  in  chambers,  not  in  open  Court,  under  a 
special  procedure  known  as  "  Enquete,"  conducted  before  a  judge  specially 
appointed  for  the  purpose,  sitting  in  chambers  (Boddington's  French  Law  of 
Evidence,  pp.  2,  92,  93  ;  Code  Civil,  Book  III.,  Tit.  III.,  arts.  1341  et  seq.), 
This  testimony,  when  given,  comes  before  the  Court  in  written  form  only, 


COLBERT  269 

L'Ordonnance  Civile  contained  various  provisions,  and  prohibited 
their  being  held  by  deputies,1  while  "  les  enquetes  par  turbes  " 
et  "  celles  d'examen  "  were  abohshed.2 

On  the  subject  of  registration  of  births,  deaths,  and  marriages 
the  Ordinance  under  consideration  contained  various  provisions 
and,  as  some  previous  ordinances  had  also  done,3  placed  these 
"Actes  de  1'Hitat  Civil,"  as  they  are  termed,  almost  entirely  in 
lay  hands,4  whereby  they  forfeited  their  exclusively  religious 
character  and  significance.6  Nevertheless,  the  French  Revolu- 
tion, when  it  took  place,  still  found  the  Register  Books  in  the  hands 
of  the  cures.6 

Owing  to  difficulties  having  arisen  in  the  execution  of  the 
Ordonnance  Civile,  another,  supplemental  thereto,  "pour  la 
reformation  de  la  justice,  faisant  la  continuation  de  celle 
du  mois  d'Avril,  1667,"  was  issued.7  Moreover,  several 
Edicts  were  also,  at  various  times,  registered,  which  form, 
as  it  were,  appendices  to  the  original  Ordonnance  Civile.8 
Thus,  by  an  Edict  of  August,  1669,  a  new  court,  called  la  Tour- 
nelle  Civile,  was  attached  to  the  Parlement  de  Paris,  for  the 
adjudication  of  cases  in  which  the  amount  in  dispute  did  not 
exceed  a  thousand  ecus,9  while  another  Edict,  issued  in  1673, 
not  only  reduced  the  fees  payable  to  the  judges,  and  curtailed 

and  the  judges  composing  such  Court  have  to  sort  out  the  wheat  from  the 
chaff,  and  form  their  opinion  upon  the  facts  which  they  consider  relevant 
and  proved  (ibid.).  In  short,  it  is  true  to  say  in  France  that  "  le  principe 
qui  domine  notre  droit  civil,  relativement  a  la  preuve  testimoniale,  est  que 
celle — si  n'est  admissible,  que  dans  des  cas  exceptionnels  perniettement 
vises  par  la  loi ;  il  n'est  pas  permis  d'appliquer  ce  mode  de  preuve  par  ana- 
logic "  (Code-Civil  Annote,  by  Fuzier-Herman,  vol.  3,  p.  450). 

1  Ord.  Civ.,  Tit.  XXII.,  art.  12. 

2  Ord.  Civ.,  Tit.  XXXV. ;  and  see  Colbert,  Promoteur  des  Grands  Ordonnances 
de  Louis  XIV.,  by  Alfred  Ayme,  p.  26. 

3  I.e.,  the  Ordinances  of  August,  1539,  and  May,  1579. 

4  Title  XX.  of  L'Ordonnance  Civile  (Des  faits  qui  gisent  en  preuve  vocale 
ou  litterale),   Articles  7  to  18  (inclusive).     Subsequent  Ordinances  on  the 
same  subject  were  issued  in  the  reign  of  Louis  XIV. — namely,  in  August, 
1683,  in  October,  1691,  in  June,  1705,  in  October,  1706,  and  in  July,  1710. 

5  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme,  p.  25  ;  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  80,  note  1. 

6  Laurent's  Principes  du  Droit  Civil  Francais,  2nd  ed.,  vol.  ii.,  pp.  6  et  seq. 

7  Isarnbert's  Recueil  General  des  Anciennes  Lois  Fran^aises,  vol.  xviii., 
pp.  341  et  seq.     The  Ordinance  referred  to  in  the  text  contained  the  following 
articles— namely :  I.  Des  Evocations  ;  II.  De  reglements  de  jugcs  en  matiere 
civile  ;  III.  De  reglements  de  jugcs  en  matiere  criminelle  ;  IV.  Des  committi- 
mus  et  gardes  gardiennes  ;  V.  Des  lettres  d'Etat ;  and  VI.  Des  Repits. 

8  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  pp.  79  et  seq. 

9  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  pp.  79,  80.     An  ecu,  or 
crown,  was  worth  about  4s.  of  our  money. 


270  COLBERT 

the  length  of  their  vacations,  but  it  also  contained  provisions 
for  promoting  and  securing  uniformity  throughout  Prance  in 
certain  legal  forms  then  in  use.1  Moreover,  by  an  Edict  of  March, 
1673,  the  publicity  of  Mortgages  was  prescribed,  a  measure  which 
has  been  regarded  as  one  of  the  wisest  and  most  important  intro- 
duced by  Colbert  in  that  which  touches  and  concerns  civil 
rights.2 

In  honour  of  the  passing  of  L'Ordonnance  Civile,  several 
medals  were  struck,  one  of  which  represents  Louis  XIV.  holding 
the  scales  of  justice,  in  presence  of  a  figure  of  Justice,  and  bears 
the  legend  "  Justitia  judicanti."3  Moreover,  many  learned 
works,  by  eminent  jurists,  were  written  to  explain  and  interpret 
the  Ordinance.4 

Reference  must  now  be  made  to  another  of  the  great  codifying 
ordinances  promoted  by  Colbert — namely,  L'Ordonnance  Crimin- 
elle  of  August,  1670,  which,  when  issued,  became  the  French 
Code  d'Instruction  Criminelle5  for  120  years,6  and,  together 
with  L'Ordonnance  Civile,  which  preceded  it,  forms  part  of 
one  and  the  same  design,7  and  was  subjected  to  very  similar 
preliminary  labours  and  ordeals.7  The  Ordinance  in  question 
exhibits  the  same  meritorious  features  as  1'Ordonnance  Civile, 
viz.,  order,  clearness,  uniformity,  and  simplicity.8  Unfortunately, 
however,  it  left  untouched  those  baleful  provisions  of  the  Ordon- 
nance  de  Villers  Cotterets  of  1539,  in  regard  to  secret  legal  pro- 
cedure,9 and  to  the  withholding  from  accused  persons,  in  the 

1  Martin's  History  of  France,,  4th  ed.,  vol.  xiii.,  pp.  79,  80.  This  useful 
measure,  owing  to  the  difficulties  experienced  in  putting  it  into  practice,  was 
revoked  in  1674  (ibid.).  2  Ibid.,  p.  80. 

3  Ibid.,  p.  79. 

4  Recueil  General  des  Anciennes  Lois  Francaises,  by  Isambert  and  others, 
vol.  xviii.,  p.  104. 

5  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhernar  Esmein, 
p.  vj.  6  Ibid. 

7  Ibid.,  p.  206  ;  and  see  Les  Anciennes  Lois  Franchises,  t.  xviii.,  p.  371. 

8  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  82.     The  Preamble  of 
L'Ordonnance  Criminelle  is,  in  substance,  as  follows  :  "  Les  grands  avantages 
quo  nos  sujets  ont  re9us  des  soins  que  nous  avons  employes  a  reformer  la 
procedure  civile  par  nos  ordonnances  d'Avril,  1667,  et  d'Aout,  1669,  nous 
ont  porte  a  donner  une  pareille  application  au  reglement  de  1' instruct  ion 
crimmclle  qui  est  d'autant  plus  importante,  que  non  seulement  ille  conserve 
les  particuliers  dans  la  possession  paisible  de  leurs  biens,  ainsi  que  la  civile, 
mais  encore  elle  assure  le  repos  public,  et  contient,  par  la  crainte  des  chati- 
ments,  ceux  qui  ne  sont  pas  retenus  par  la  consideration  de  leur  devoir. 
A  ces  causis,  &c,  &c."    Isambort,  Recueil  General  des  Anciennes  Lois  Fran- 
caises, vol.  xviii.,  pp.  371,  372). 

9  Ibid.     The  secret  procedure  referred   to   in   the  text  existed  in  France 
long  before  1539,  when,  however,  resort  thereto  became  general  (ibid.). 


COLBERT  271 

majority  of  cases  at  least,  of  the  professional  aid  afforded  by 
trained  advocates.1  Moreover,  it  also  retained  the  barbarous 
practice  (termed  la  question)  for  procuring  confessions  of  guilt, 
and  the  disclosure  of  accomplices'  names,  from  accused  persons 
by  the  use  of  torture,  where  other  measures  failed.2  The  reten- 
tion of  such  objectionable  provisions 3  was  in  no  small  measure 
due  to  the  arguments  and  influence  of  Colbert's  uncle,  Henri 
Pussort,  which  seem  to  have  prevailed  over  the  wiser  and  more 
humane  arguments  urged  with  great  force  and  eloquence  by 
Lamoignon,  the  First  President  of  the  Parlement  de  Paris,4  who, 
however,  did  succeed  in  introducing  into  the  Ordinance  many 
amendments  and  corrections,6  while,  on  the  other  hand,  he 
seems  to  have  resisted  some  useful  reforms,  and  is  known  to  have 
protested  against  any  attempts  to  curtail  judicial  privileges  and 
profits.6 

In  a  memorandum,  addressed  by  Colbert  to  Louis  XIV.,  he 
defined,  in  the  following  words,  the  task  of  the  Conseil  de  Justice 
in  the  sphere  of  penal  legislation  : 

"  Examiner  tout  ce  qui  concerne  la  justice  criminelle  du  roy- 
aume,  comme  la  plus  importante,  en  retrancher  toute  la  chicane, 
et  prendre  garde  d'etablir  des  moyens  assures  pour,  en  conservant 
et  assurant  les  innocents,  parvenir  promptement  a  la  punition 
des  criminels."7 

This  was  to  be  the  aim  of  the  Ordonnance  Criminelle  of  1670, 

1  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  82.    Semble,  prisoners  were 
allowed  to   have  counsel  only  in  non-capital  cases  (Colbert,  Promoteur  des 
Grands  Ordonnances  de  Louis  XIV.,  by  Alfred  Ayme,  p.  33). 

2  Tit.  XIX.  (Des  jugements  et  Proces-verbaux,  de  Question  et  Tortures) 
(Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred  Ayme, 
p.  33).     This,  and  certain  other  objectionable,  not  to  say  barbarous,  features 
of  the  Ordonnance  Criminelle  caused  Voltaire   to  express  the  opinion  that 
"  Le  Code  Criminelle  est  une  preuve  du  inepris  que  des  honimes  qui  se  croient 
au-dessus  des  lois  osent  quelquefois  montrer  pour  le  peuple  "   (Voltaire's 
collected  Works,  published  in  1819,  vol.  xviii.,  p.  197,  note  1).    It  is  only  fair 
to  state  that  Art.  12  of  Title  XIX.  of  L' Ordonnance  Criminelle  provided 
that    "  Quelque   nouvelle   preuve   qui   survienne,    1'accuse  ne   pourra   etro 
applique  deux  fois  a  la  question  pour  un  meme  fait." 

3  The  original  author  of  these  provisions  is  said  to  have  been  De  Paget, 
the  Chancelier  of  1539. 

*  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  83  ;  Precis  de  VHistoire 
du  Droit  Fran^ais,  by  Paul  Viollet,  p.  188  ;  Histoire  de  la  Procedure  Criminelle 
en  France,  by  Adhemar  Esmein,  p.  193. 

5  Precis  de  VHistoire  du  Droit  Fran^ais,  by  Paul  Viollet,  p.  187. 

6  Ibid.  ;  and  see  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar 
Esmein,  pp.  209,  210. 

7  Colbert,  Promoteur  des  Grand  Ordonnances  de  Louis  XIV.,  p.  30  ;  Revue 
Retrospective,  2d  scrie,  t.  iv.,  p.  257. 


272  COLBERT 

which,  however,  it  must  be  confessed,  was  not  fully  achieved, 
so  that,  of  all  the  codifying  Ordinances  issued  in  the  reign  of 
Louis  XIV.  and  promoted  by  Colbert,  this  particular  one  has 
remained,  upon  the  whole,  the  least  bold,  the  least  innovating, 
and  the  least  praiseworthy.1 

It  is  not  proposed  to  discuss  or  examine  in  detail  the  pro- 
visions of  the  Ordonnance  Criminelle,  which,  it  may  be  men- 
tioned, comprised  twenty-eight  Titles,2  and,  without  introducing 
a  new  procedure,  regulated  a  system  which  had  been  gradually 
formed  in  France,  and  had  also  developed  in  neighbouring 
countries.3  The  Ordonnance  did,  however,  reduce  to  precision 
the  anterior  law,4  and,  in  the  conferences  which  took  place  while 
tlie  Ordinance  was  still  being  discussed,  care  was  taken  by  its 
framers,  when  a  particular  article,  suggested  for  adoption, 
contained  new  matter,  to  direct  special  attention  thereto.5 
Nevertheless,  the  Ordonnance  Criminelle  was  by  no  means  a  mere 
reproduction  of  a  picture  somewhat  tarnished  by  age,  for  it  did 
renovate  the  law  in  certain  respects,  and  unfortunately  added 
some  new  rigours  to  ancient  severities,6  though  it  did  likewise 
somewhat  modify  the  brutal  scale  of  punishments,  till  then  in 
force,  and  also  introduced  some  much-needed  prison  reforms.7 
Moreover,  while  it  adhered  to  fundamental  principles,  fixed  by 
previous  ordinances,  it  settled  the  details  thereof,  and,  for  the 
first  time,  presented  a  systematic  exposition  of  criminal  proce- 
dure,8 even  condescending  to  the  most  minute  particulars  of 
the  inquisitorial,  written,  and  secret  methods  of  such  procedure.9 
The  Ordinance  likewise  sought  to  prevent  future  conflicts  of  the 
different  magistrates  amongst  themselves,  in  regard  to  their 
respective  jurisdictions  over  crimes  and  minor  offences,  by 
determining  and  defining,  as  far  as  possible,  their  respective 
spheres  and  powers.10  Indeed,  according  to  memoranda  supplied 

1  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  83. 

2  Ibid.,  p.  81. 

3  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhernar  Esmein, 
pp.  vj,  vij.  *  Ibid. 

3  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar  Esmein, 
p.  vij.  6  Ibid. 

7  Cambridge  Modern  History,  vol.  v.,  p.  15. 

8  Histoire  de  la  Procedure  Criminelle  en  France,   by  Adhemar  Esmein, 
p.  vij. 

9  Ibid.     The  oral  and  public  accusatory  inquisition  of  the  Middle  Ages 
gradually  became  secret  and  inquisitorial  (ibid.). 

10  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme,  p.  30. 


COLBE&T? 

by  members  of  the  Conseil  d'Etat,  prior  to  the  drafting  of  the 
Ordinance  under  consideration,  the  reform  of  the  magistracy, 
rather  than  of  the  law  itself,  was  recommended,  though  the 
remodelling  and  modernizing  of  the  existing  Ordinances  was  also 
suggested  as  being  desirable.1  This  can  hardly  be  wondered 
at,  having  regard  to  the  scandalous  appointments  to  the  Magis- 
terial Bench  which,  in  the  time  of  Colbert,  were  often  made, 
vacancies  thereon  being  sometimes  filled  by  mere  boys,  fresh 
from  college,  \vho  Mere  invested  with  powers  of  life  and  death.2 

In  forming  a  critical  judgment  upon  the  Ordonnance  Criminelle 
of  1670,  it  would  be  most  unfair  to  compare  it  with  modern 
criminal  codes,  or  with  existing  penal  legislation.  It  was  the 
product  of  an  age  in  which  public  opinion  sanctioned  what 
would  now  be  regarded  as  cruel,  not  to  say  barbarous,  methods 
of  dealing  with  crimes  and  criminals.  Draconian  severity  was 
then  considered  to  be  justifiable,  in  order  to  enforce  obedience 
to  the  law.  Whether  Colbert  himself  was  in  favour  of  such  a 
system  may  well  be  doubted.  Probably  he  was  far  in  advance 
of  his  time,  and  was  content  therefore  to  regard  the  Ordonnance 
Criminelle,  not  as  a  perfect  code,  but  as  a  mere  step  in  the  right 
direction. 

Though  the  two  Ordinances  already  referred  to  were  the 
principal  ones  registered  during  the  reign  of  Louis  XIV.  and  in 
the  lifetime  of  Colbert,  they  are  by  no  means  the  only  important 
ones  attributable  to  the  latter's  initiative  and  genius.  Thus, 
even  while  the  Civil  and  Criminal  Ordinances,  already  examined, 
were  in  process  of  incubation,  Colbert,  surrounded  by  some 
twenty-one  Commissioners,  who,  by  diligent  and  searching 
investigations,  extending  over  eight  years,  had  made  themselves 
acquainted  with  the  necessary  particulars  and  details,  was  pre- 
paring his  magnificent  scheme  of  legislative  reform  in  the  depart- 
ment of  Waters,  Woods,  and  Forests,3  which  eventually  took 
shape  as  "  L'Ordonnance  des  Eaux  et  Forets  "  of  August,  1669,4 
has  been  designated  a  monument  of  legislative  wisdom,5  and  sub- 

1  Histoire  de  la  Procedure  Criminelle  en  France,  by  Adhemar  Esmein, 
p.  185.  2  Ibid.,  p.  182. 

3  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XI V.,  by  Alfred  Ayme, 
p.  37  ;  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  90  ;  Bachelet's  Les 
Grands  Ministres  Fran^-ais,  tit.  Colbert,  p.  369  ;  Isambert's  Recueil  General 
des  Anciennes  Lois  Francaises,  xviii.,  p.  219. 

4  Martin's  History  of  France,  4th  ed.,  xiii.,  p.  90. 

5  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XI V.,  by  Alfred  Ayme, 
p.  37. 

19 


274  COLBERT 

sisted,  almost  intact,  down  to  1827.1  This  Ordinance,  by  itself, 
would  have  sufficed  to  render  any  Minister  producing  it  illustrious.2 
It  codified  and  produced  a  multitude  of  confused  and  contradic- 
tory laws,  which  had  survived  from  the  remote  times  of  Charle- 
magne, who  himself  attempted  to  organize  the  service  of  "les 
eaux  et  forets,"3  in  the  hope  of  being  able  to  check  numerous 
invasions  of,  and  encroachments  upon,  water  and  forest  rights. 
Certainly  there  was  ample  justification  for  the  issue  of  the  new 
Ordinance,  mainly  in  order  to  preserve  and  protect  forest  rights, 
both  public  and  private,  and  to  prevent,  in  the  interest  of  private 
individuals,  commerce,  and  maritime  requirements,  the  wanton 
destruction  of  timber  trees.4  Without  attempting  to  reproduce 
the  provisions  of  this  Ordinance,  which  was  of  wide  scope  and  vast 
importance  to  France,  suffice  it  to  to  state  that  it  introduced 
uniformity  of  jurisprudence  for  all  offences  within  its  purview,6 
and  that,  besides  legislating  for  woods  and  forests,  properly  so 
called,  it  also  contained  elaborate  police  regulations  in  regard  to 
fishing  in  rivers,  suppressed  alleged  rights  of  toll  having  no  legal 
origin,  controlled  the  exercise  of  sporting  rights  by  various 
prescriptions,  prohibited  hunting  in  vineyards  and  in  lands  under 
cultivation,  and  abolished  the  death  penalty  for  acts  of  poaching 
committed  by  peasants.6  That  the  Ordinance  was  largely  in- 
tended to  safeguard  the  interests  of  sea  and  river  navigation  is 
clearly  indicated  by  its  Preamble  and  by  many  of  its  articles.7 
It  has  been  said  of  this  great  Ordinance  that  it  is  one  of  those 
monuments  of  human  skill  and  forethought  in  which  order  and 
reason  are  combined,  and  which,  once  overturned,  cannot  readily 
be  replaced.8  Certainly  the  Code  Forestiere  of  1827  does  not 
seem  to  have  been  regarded  as  an  improvement  upon  the  Ordin- 
ance of  1669.9 

1  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme,  p.  37 ;  and  see  Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre 
Clement,  iv.,  p.  Ixii. 

a  Martin's  History  of  France,  4th  ed.,  xiii.,  p.  90. 

3  Ibid.  ;  and  see,  generally,  Lettres,  Instructions,  et  Memoires  de  Colbert, 
by  Pierre  Clement,  iv. 

4  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Aynie,  pp.  37  et  seq.  ;  and  see  Martin's  History  of  France,  4th  ed.,  xiii., 
pp.  90  et  seq.  «  Ibid. 

°  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  supra,  p.  39. 

7  Martin's  History  of  France,  4th  ed.,  xiii.,  p.  91.  In  1681  Colbert 
wrote  to  the  Intendant  de  Tours  et  Limoges:  "Quo  rien  n'est  d'une  plus 
grande  utilite  et  n'apporte  plus  d'avantages  aux  peuples  quo  la  navigation 
des  rivieres  "  (Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement, 
vol.  iv.,  p.  cxv). 

s  Martin's  History  of  France,  4th  ed.,  xiii.,  p.  92.  9  Ibid. 


COLBERT  275 

Passing  over  certain  Ordinances  of  minor  importance,  including 
one  of  August,  1871,  establishing  uniformity  of  weights  and 
measures  in  all  the  ports  and  arsenals  of  France,  we  come  to 
another  great  Ordinance,  namely,  L'Ordonnance  pour  le  Com- 
merce of  1673.1  The  object  of  this  Ordinance  is  indicated  by  its 
Preamble  in  the  following  words  :  "Comme  le  Commerce  est  la 
source  de  Fabondance  publique,  et  la  richesse  des  particuliers, 
nous  avons  depuis  plusieurs  annees  applique  nos  soins  pour  le 
rendre  florissant  dans  notre  royaume.  C'est  ce  qui  nous  a  porte 
premierement  a  eriger  parmi  nos  sujets  plusieurs  compagnies, 
par  le  moyen  desquelles  ils  tirent  presentement  des  pays  les  plus 
eloignes,  ce  qu'ils  n'avaient  auparavant  que  par  1'entremise  des 
autres  nations.  C'est  ce  qui  nous  a  engage  ensuite  a  faire  con- 
struire  et  armer  grand  nombre  de  vaisseaux  pour  1'avancement 
de  la  navigation,  et  a  employer  la  force  de  nos  armes  par  mer  et 
par  terre  pour  en  maintenir  la  surete.  Ces  etablissements  ayant 
en  tout  le  succes  que  nous  en  attendions  nous  avons  cru  $tre 
oblige  de  pourvoir  a  leur  duree,  par  des  reglements  capables 
d'assurer  parmi  les  negocians  la  bonne  foi  contre  la  grande,  et 
de  prevenir  les  obstacles  qui  les  detournent  de  leur  emploi,  par  la 
longueur  des  proces,  et  consommant  en  frais  le  plus  liquide  de 
ce  qu'ils  out  acquis."  2  This  Ordinance,  which  embraces  all  that 
concerns  commerce,3  is  believed  to  have  been  Colbert's  favourite 
piece  of  legislation.4  It  contains  twelve  Titles,  and  was  considered 
to  be,  in  all  respects,  worthy  of  the  pains  bestowed  upon  it  by 
Colbert  himself  and  by  Savari,  the  great  commercial  specialist, 
author  of  a  work  once  considered  famous,  called,  Le  Parfait 
Negotiant,5  published  in  1675,6  who  is  said  to  have  prepared  the 
first  draft  of  the  Commercial  Ordinance,  which  has,  on  this 
account,  sometimes  been  called,  after  him,  the  Code  Savari.7 
Colbert  was  not,  however,  content  to  consult  only  one  commercial 

1  In  connection  with  this  Ordinance,  reference  should  be  made  to  the 
Edict  of  August,  1669 :  "  Portant  que  les  gentilshommes,  pourront  faire  le 
commerce  de  mer  sans  deroger  "  (Isambert's  Recueil  General  des  Anciennes 
Lois  Francaises,  vol.  xviii.,  pp.  217  et  seq.). 

2  Isambert's  Recueil  General  des  Anciennes  Lois  Francises,  xix.,  pp.  92, 
93. 

3  Biographie  Ancienne  et  Moderne,  ix.,  tit.  Colbert,  p.  216. 

4  Precis  de  VHistoire  du  Droit  Francaises,  by  Paul  Viollet,  p.  189. 

5  Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  152.     He  also  wrote 
Les  Pareres,  which  was  published  in  1688  (Precis  de  VHistoire  du  Droit  F ran- 
cais,  by  Paul  Viollet,  p.  189). 

6  Precis  de  I'Histoire  du  Droit  Fran^ais,  by  Paul  Viollet,  p.  189. 

7  Ibid. 


276  COLBERT 

specialist.  On  the  contrary,  he  enlisted  the  services  of  the  best- 
known  French  merchants  of  the  day,  and  invited  them  to  visit 
him,  so  that  they  might  afford  him  trustworthy  information  and 
discuss  amongst  themselves,  and  with  him,  mercantile  usages 
and  law.1  He  even  lodged  some  of  them  under  his  own  roof,  and 
presented  them  to  the  King  .2  The  Ordinance  under  consideration 
was  designed  to  free  commercial  men  from  needless  anxiety  in 
their  profession,  engendered  by  a  variety  of  customs,  to  protect 
good  faith  from  fraud,  to  establish  uniform  legislation  in  com- 
mercial cases,  and  to  diminish  the  length  and  cost  of  litigation.3 
It  rendered  interest  upon  interest  illegal,4  and  contained  elaborate 
and  minute  provisions  in  regard  to  the  conduct  of  mercantile 
affairs,  and  regulated  the  conduct  of  business  by  merchants, 
obliging  them  to  practise  book-keeping,  to  ascertain  from  day 
to  day  the  state  of  their  accounts,  and  also  to  make  and  preserve 
copies  of  all  letters  despatched,  and  to  file  those  received.6  More- 
over, it  likewise  regulated  the  conditions  of  age  and  apprentice- 
ship for  those  wishing  to  become  merchants,  providing  that,  for 
commercial  purposes,  minors  should  be  regarded  as  of  full  age.6 
The  same  Ordinance  also  contained  various  provisions  as  to 
Companies  or  Partnerships,7  which  do  not  call  for  notice,  and 
required  that  disputes  amongst  members  thereof  should  be  sub- 
mitted to  compulsory  arbitration.8  Finally,  in  order  to  secure 
obedience  to  its  provisions,  the  Ordinance  rendered  merchants 
failing  to  observe  its  more  important  provisions  at  least  liable, 
in  case  of  insolvency,  to  be  declared  fraudulent  bankrupts  and 
sentenced  to  death.9 

1  Precis  de  VHistoire  du  Droit  Franrais,  by  Paul  Viollet,  p.  189. 

3  Ibid. 

3  Martin's  History  of  France,  4th  ed.,  xiii.,  p.  153;  Colbert,  Promoieur 
des  Grands  Ordonnances  de  Louis  XI V.,  p.  40.  The  twelve  Titles  into  which 
tho  Ordinance  is  divided  are  as  follows :  I.  Des  apprentis,  Negotiants,  et 
Marchands,  tant  en  gros  qu'en  detail ;  II.  Des  Agens  de  Banque  et  courtiers  ; 
III.  Des  livres  et  Registres  de  Negocians,  Marchands,  et  Banquiers  ;  IV.  Des 
Societes ;  V.  Des  Lettres  et  Ballets  de  change  ct  promesses  d'en  fournir ; 
VI.  Des  interets  de  change  et  du  rechange ;  VII.  De  Contraintes  par  Corps ; 
VIII.  Des  separations  de  biens  ;  IX.  Des  Defenses  et  Lettres  de  repit ;  X.  Des 
Cessions  de  biens  ;  XI.  Des  Faillites  et  Banqueroutes  ;  XII.  De  la  juridiction 
des  Consuls  (Isambert's  Recueil  General  des  Anciennes  Lois  Francoises,  vol.  xix., 
pp.  93  to  107).  *  Tit.  VI.,  supra. 

6  Colbert,  Promoteur  des  Grands   Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayine,  p.  40  ;  and  see  Tit.  II.  of  the  Ordinance. 

8  Tit.  I.  of  the  Ordinance ;  and  see  Colbert,  Promoteur  des  Grands  Ordon- 
nances de  Louis  XIV.,  supra,  p.  40. 

7  See  Tit.  IV.  of  the  Ordinance.  8  Ibid. 

9  See  Tit.  XI.  of  the  Ordinance  ;  Colbert,  Promoteur  des  Grands  Ordonnances 
de  Louis  XIV.,  p.  40. 


COLBERT  277 

L'Ordonnance  de  Commerce  was,  in  1680,  followed  by  the 
Salt  Tax  (Gatelle)  Ordinance,  to  which  no  further  reference  need, 
however,  be  made. 

It  was  in  August,  1681,  that  the  celebrated  Ordonnance  pour 
la  Marine  was  issued,  which  was  subsequently  largely  adopted 
by  the  English  Admiralty.1  The  elaboration  of  this  Ordinance 
was  confided  to  special  Commissioners,  to  aid  whom  in  their 
task  Colbert  appointed  a  Maitre  des  Requetes  to  visit  all  the 
ports  of  the  kingdom.2  This  Ordinance  comprised,  besides  other 
matters  too  numerous  to  mention,  all  that  concerns  the  duties 
of  Admirals,  the  jurisdiction  of  Admiralty  officials,  the  mode  of 
procedure  to  be  adopted  in  Admiralty  cases,  the  prerogatives  of 
Consuls  in  foreign  countries,  the  organization  of  French  mer- 
chants, and  of  the  navigation  of  the  ports  of  the  Levant,  "en 
assemblee  ou  Nation."3  It  also  prescribed  the  conditions  of 
capacity  for  employment  of  pilots  and  captains  of  ships,  obliged 
ships  making  long  voyages  to  carry  chaplains  and  surgeons,4 
regulated  the  policing  of  the  coasts  and  of  the  seashores,  introduced 
measures  for  saving  life  at  sea,  and  provided  for  the  infliction  of 
the  death  penalty  on  those  who  robbed  shipwrecked  persons.5 

Two  years  after  Colbert's  death  was  issued  the  last  Ordinance 
with  which  his  name  is  associated,  and  which  was  prepared 
during  his  ministry — namely,  L'Ordonnance  Coloniale  of  1685, 
which  is  best  known  by  its  nickname  of  the  "  Code  Noir."6 

The  responsibility,  and  the  honour  and  credit,  for  the  produc- 
tion of  this  Ordinance,  which  regulated  the  government  of  the 
French  West  Indian  colonies  and  the  condition  and  treatment 
of  negro  slaves  and  freedmen,7  have  been  ascribed  to  Colbert's 
eldest  son,  the  Marquis  de  Seignelay,  though  it  certainly  was 
inspired  by  the  great  Colbert  himself,  whose  spirit  it  breathes.8 

This  Ordinance  regulated  generally  the  treatment  of  negroes 
in  all  the  French  colonies,9  and  established  the  obligations  of 

1  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  supra,  p.  42. 

2  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  by  Alfred 
Ayme,  p.  42.  3  Ibid.  *  Ibid.  5  Ibid. 

6  Clement's  Histoire  de  Colbert,  vol.  ii.,  chap,  xxviii.,  pp.  323,  324  ;  Martin's 
History  of  France,  4th  ed.,  vol.  xiii.,  p.  555. 

7  Latham's  Dictionary  of  Names,  etc.,  p.  62  ;  and  see  Colbert,  Promoteur 
des  Grands  Ordonnances  de  Louis  XIV.,  by  Pierre  Clement,  pp.  43  et  seq. 

8  Clement's  Histoire  de  Colbert,  vol.  ii.,  chap,  xxviii.,  p.  324.     Colbert's 
oldest  son  only  survived  his  father  for  seven  years,  dying  November  3,  1690 
(Works  of  Voltaire,  xvii.,  p.  35;  Lettres  de  Madame  de  Sevigne,  annotated 
edition,  1862,  vol.  ix.,  pp.  582,  583). 

9  Manuel  de  Droit  Francais,  9th  ed.,  by  Judge  Pailliet,  p.  xxiv. 


278  COLBERT 

masters  towards  their  slaves,  protecting  the  latter  from  oppression 
by  exemplary  punishments.1  It  provided  that  negro  slaves 
should  be  suitably  clothed  and  fed,  and  also  taken  care  of  in  time 
of  sickness  ;  that  the  murder  of  a  black  slave  by  his  master  should 
be  the  subject  of  criminal  prosecution  ;2  that  negroes  could  marry 
and  have  families;  that  the  husband  and  wife  and  children,  though 
slaves,  should  not  be  sold  separately ;  that  the  child  of  a  slave 
husband  and  a  free  mother  should  follow  the  condition  of  the 
latter ;  and  that  all  slaves  should  be  baptized  and  instructed  in 
the  Catholic  religion.3 

Having  regard  to  the  terms  of  this  Ordinance,  which  was 
certainly  an  improvement  on  the  existing  law,4  it  scarcely  seems 
to  deserve  the  severe  judgment  passed  upon  it  by  Voltaire,  who 
wrote  that  "le  Code  Noir  n?a  servi  qu'a  montrer  que  les  gens  de 
loi,  consulted  par  Louis  XIV.,  n'avaient  aucune  idee  des  droits  de 
I'humaniteV'5  That  it  remained  operative  until  1847,  some 
months  before  the  abolition  of  slavery  in  the  French  colonies, 
testifies  to  its  intrinsic  worth.6 

In  reviewing  Colbert's  work  as  a  legislative  reformer,  it  should 
always  be  remembered,  to  his  credit,  that  he  aimed  at  reducing 
the  whole  body  of  the  ordinances  of  his  country,  by  means  of 
their  codification,  into  as  complete  and  uniform  a  system  of 
jurisprudence  as  the  Roman  law  itself  became,  in  the  time,  and 
thanks  to  the  labours,  of  Justininan.7  Such  being  his  ambition, 
Colbert  naturally  urged  Louis  XIV.  not  to  be  satisfied  merely 
to  reform  the  administration  of  justice,  but  to  fulfil  what  is 
believed  to  have  been  the  ambition  of  both  Louis  XI.  and 
Henri  IV. — namely,  the  bringing  of  the  whole  kingdom  under 
the  same  law,  "  meme  mesure  et  meme  poids."8  To  have  achieved 
such  a  result  would  probably  have  required  thirty  years  of 
continuous  peace,  which  Colbert's  ambitious  sovereign  would  not 
concede.9  Nevertheless,  much  was  undoubtedly  accomplished, 
in  the  right  direction,  by  the  great  codifying  ordinances  already 
referred  to,  which,  however,  in  point  of  fact,  represent  "  quelques 

1  Biographie,  Universdle  et  Moderns,  tit.  Colbert,  p.  216. 

2  Colbert,  Promoteur  des  Grands  Ordonnances  de  Louis  XIV.,  supra,  p.  44. 

3  Martin's  History  of  France,  4th  ed.,  xiii.,  p.  556. 
*  Ibid. 

6  Voltaire's  collected  Works,  ed.  of  1819,  xviii.,  p.  197,  note  1,  where 
it  is  also  stated,  however,  that  "  il  y  eut  m£me  une  jurisprudence  nouvelle 
etablie  en  faveur  des  negres  de  nos  colonies,  esp^ces  d'homme  qui  n'avaient 
pas  encore  joui  des  droits  de  1'humaniteV' 

r>  Martin's  History  of  France,  4th  ed.,  xiii.,  p.  556. 

1  Ibid.,  p.  76.  s  Ibid    p  77  9 


COLBERT  279 

fragments  seulement  de  la  pense'e  de  Colbert  sur  1'unite  des  lois," 
though  it  is  likewise  true  that  "  la  Prance  judiciaire  a  vecu  de  ses 
fragments  jusqu'en  1789."1 

After  Colbert's  death  in  1683,  several  ordinances  were  issued 
besides  that  termed  the  "  Code  Noir."  Of  these,  he  does  not  seem 
to  have  had  any  hand  in  their  preparation,  and,  most  probably, 
they  were  not  even  thought  of  till  after  his  death.  Neither  was 
he  in  any  way  responsible  for  the  Edict  of  1683,  which  repealed 
the  Edicts  of  Nantes  and  Nimes.2  This  Edict,  which  is  said  to 
have  been  drawn  up  by  the  Chancellor  le  Tellier  shortly  before 
his^own  death,3  seems  to  have  been  issued  by  the  advice  of  Louvois, 
who,  on  Colbert's  death,  became  the  chief  Minister  of  State.4 
Colbert  himself  was  very  tolerant,  both  to  Huguenots  and  Jews,5 
and  his  eldest  son,  the  Marquis  de  Seignelay,  was  also  opposed 
to  religious  persecutions.8 

In  the  reign  of  Louis  XIV..  the  great-grandson  of  the  Grand 
Monarque,  further  codifying  ordinances  were,  from  time  to  time, 
registered.  The  credit  for  these  has  justly  been  ascribed  to  the 
Chancelier  Aguesseau,  reputed  to  have  been  the  greatest  lawyer 
of  his  age,  just  as,  in  the  preceding  reign,  the  great  ordinances 
issued  were  largely  due  to  the  inspiring  genius  and  influence  of 
Colbert.7 

The  Ordinances  of  Louis  XV.  seem  to  have  been  prepared  in 
much  the  same  manner  as  those  issued  by  his  predecessor,  and  after 
consultation  with  persons  possessing  the  necessary  expert  know- 
ledge and  skill.8  By  means  of  these  ordinances,  that  part  of  the 
civil  law  governing  donations,  wills,  and  substitutions  was 
codified.9  The  production  of  the  Codes  of  the  Consulate  and 
Empire  were  also  the  result  of  most  elaborate  and  laborious 
preparation.10 

The  French  Civil  Code  (Code  Napoleon),  as  it  ultimately  ap- 

1  Margin's  History  of  France,  4th  ed.,  xiii.,  p.  77. 

2  Manuel  de  Droit  Franchise,  9th  ed.,  by  Judge  Pailliet,  p.  xiv. 

3  Martin's  History  of  France,  4th  ed.,  xiv.,  p.  47. 

4  Lectures  on  Modern  History,  by  Lord  Acton,  p.  244  ;  Martin's  History  of 
France,  4th  ed.,  xiv.,  pp.  39  et  seq. 

5  Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  iii.,  pt.  ?, 
p.  xxii. 

6  Martin's  History  of  France,  4th  ed.,  xiv.,  p.  2. 

7  Cours  Elementaire  tfHistoire  du  Droit  Francais,  2nd  ed.,  by  Adhemar 
Esmein,  p.  785  ;  Le  Code  Civile,  Lime  du  Centenaire,  p.  17. 

8  Le  Code  Civile,  Livre  du  Centenaire,  p.  17.  9  Ibid. 

10  Ibid. ;  and  see  Cours  Elementaire  d'Histoire  du  Droit  Francais,  supra, 
p.  785. 


280  COLBERT 

peared,  was  not  a  new  creation,  and  its  compilers  were  disciples, 
and  not  prophets,1  but  the  Code  actually  issued  was  totally  dif- 
ferent from  what  was  contemplated  and  intended  by  the  men  of 
the  Revolution.2  It  is  based  on  the  Roman  law,  and  was  the 
first  successful  effort  to  give  complete  unity  to  law  in  France.3 
A  step  so  bold  could  hardly  have  been  attempted  by  an  autocrat, 
and  on  the  morrow  of  a  Revolution.4 

Closing  Years  of  Life. — The  closing  years  of  Colbert's  life 
did  not  yield  much  happiness  or  contentment  to  the  great 
statesman,  whose  colossal  administration  of  wellnigh  twenty- 
two  years'  duration  had  accomplished  so  much  for  the 
good  of  his  country  in  all  departments  of  the  public  service, 
and  notably,  as  has  been  seen,5  in  that  of  finance,  which 
needed  the  exercise  of  the  utmost  skill,  and  the  posses- 
sion of  supreme  gifts  by  Colbert,  in  order  to  avert  national 
bankruptcy,  which  appeared  to  be  the  almost  inevitable  conse- 
quence of  Fouquet's  previous  mismanagement,  extravagance, 
and  dishonesty.  For  some  time  before  his  death  Colbert  was 
the  victim  of  intrigues  and  accusations,  skilfully  contrived  by 
Michael  le  Tellier  and  his  able  but  unscrupulous  son  Fra^ois, 
or  Fran9ois-Michel,  Marquis  de  Louvois,6  whose  sinister  influence 
over  Louis  XIV.  was  at  first  counterbalanced  by  that  of  Colbert 
and  Lionne.?  No  longer  able  to  count  upon  the  support  and 
full  confidence  of  the  King,  whom  he  had  ever  loved8  and  faith- 
full}-  served,  hated  by  the  people,  who  wrongly  attributed  to  his 
prodigality  the  heavy  taxation,  under  which  they  groaned,  and 
which  was  really  due,  amongst  many  other  causes  beyond 
ministerial  control,  to  wars  which  Colbert  opposed  and  Luvois 
advocated,9  and  despised  by  the  old  aristocracy,  who  sneered 
at  his  comparatively  humble  origin,10  Colbert  must  indeed 

1  Le  Code  Civile,  Livre  du  Centenaire,  p.  5.  2  Ibid. 

3  Studies  in  History  and  Jurisprudence,  by  James  Bryce,  pp.  376,  377. 

4  Ibid.  5  Aniet  p>  241. 
8  Martin's  History  cf  France,  4th  ed.,  xiii.,  p.  633. 

7  Lectures  on  Modern  History,  by  Lord  Acton,  p.  239. 

8  Martin's  History  of  France,  4th  ed.,  xiii.,  p.  633 ;  Colbert,  Promoteur  des 
Grands  Ordonnances  de  Louis  XIV.,  by  Alfred  Ayme,  p.  10. 

"  La  lutte  entre  Colbert  et  Louvois  etait  incessant*  ;  pendant  la  guerre, 
Colbert  avait  poussait  a  la  paix ;  pendant  la   paix,  Louvois   poussait  a  la 
guerre  "  (Martin's  History  of  France,  4th  ed.,  vol.  xiii.,  p.  545). 
0  According  to  a  contemporary  epigram  on  Colbert  : 

"  Colbert  serait  un  gros  drapier 
Si  chacun  faisait  son  metier." 

[Lettres,  Instructions,  et  Memoires  de  Colbert,  by  Pierre  Clement,  i.,  pp.  467 
ft  seq.). 


COLBERT  281 

have  felt  that  he  who  had  "  once  trod  the  ways  of  glory  " 
was,  at  the  close  of  his  life,  discredited,  if  not  actually  dis- 
graced.1 

It  was  in  Paris,  at  his  residence  in  the  Rue  Neuve  des  Petits- 
champs,  that  Colbert  breathed  his  last,  on  September  6.  1683, 
being  then  aged  sixty-four.2  The  disease  which  proved  fatal  to 
him  was  stated  to  have  been  stone  .3  In  his  last  illness  his  spiritual 
wants  were  attended  to  by  that  great  Jesuit  preacher  Bourdalone, 
assisted  by  the  Cure  of  St.  Eustache,  as  parish  priest.4  When 
near  his  end  a  letter  from  the  King  to  his  dying  Minister  was 
handed  to  Colbert,  who  exclaimed  :  "  Je  ne  veau  plus  entendre 
parler  du  roi ;  qu'au  moins  il  me  laisse  mourir  tranquille.  C'est 
au  roi  des  rois  que  j'ai  maintenant  a  repondre  "  ;  likewise  adding, 
"  Si  j'avais  fait  pour  Dieu  ce  que  j'ai  fait  pour  cet  homme — la,  je 
serais  sauve  dix  fois,  et  maintenant  je  ne  sais  que  je  vais 
devenir  "5 — words  which  recall  the  noble  language  attributed  to 
Cardinal  Wolsey  after  his  fall.6 

Owing  to  the  hostility  of  the  people,7  whose  ingratitude  to 
Colbert  was  even  greater  than  that  of  the  King,8  who  did  show 
some  signs  of  grief  at  his  great  Minister's  death,9  it  was  deemed 
prudent  to  conduct  the  obsequies  of  Colbert  with  little  or  no 

1  Martin's  History  of  France,  supra,  xiii.,  p.  633  ;  Colbert,  Promoteiir  des 
Grands  Ordonnances  de  Louis  XIV.,  by  Alfred  Ayme,  p.  10. 

2  Jal's  Dictionnaire  de  Biographic  et  d'Histoire,  p.  399 ;  Life  of  Famous  John 
Baptist  Colbert,  done  into  English  in  1695,  p.  233  ;  Biographic  Universelle, 
Ancienne  et  Moderne,  ix.,  tit.  Colbert,  p.  224. 

3  Chalmers'  General  Biographical  Dictionary,  vol.  v.,  p.  19. 

4  Martin's  History  of  France,  4th  ed.,  xiii.,  p.  634. 

5  Martin's  History  of  France.   4th  ed.,   xiii.,  p.   634.     To  a  Vicaire   of 
St.  Eustache,  who  told  Colbert  that  the  faithful  would  pray  for  his  recovery, 
he  replied,  "  No,  not  that ;  but  let  them  pray  God  to  have  mercy  on  me  " 
(Bachelet's  Les  Grands  Ministres  Francais,  tit.  Colbert,  p.  403).     Probably 
the  dying  statesman  felt  then,  like  the  great  King  Arthur,  that 

"  More  things  are  wrought  by  prayer 
Than  this  world  dreams  of." 

6  See  Henry  VIII.,  Act  iii.,  Scene  2.     Wolsey's  actual  words  are  said  to 
have  been,  "  Had  I  but  served  my  God  as  diligently  as  I  have  served  my 
King,  He  would  not  have  given  me  over  in  my  grey  hairs.     But  this  is  the 
just  reward  that  I  must  receive  for  my  diligent  pains  and  study,  not  regarding 
my  service  to  God,  but  only  to  my  King." 

7  It  was  feared  that  insult  might  be  offered  to  Colbert's  remains  by  the 
populace  (Martin's  History  of  France,  supra,  xiii.,  p.  634 ;  Eloge  de  Jean 
Bip'isle  Colbert,  1783,  p.  60  ;  Encyc.  Brit.,  llth  ed.,  vi.,  p.  659). 

8  Martin's  History  of  France,  supra,  xiii.,  p.  634  ;  Colbert,  Promoteur  des 
Grands  Ordonnances  de  Louis  XIV.,  by  Alfred  Ayme,  p.  10. 

9  Life  and  Times  of  Louis  XIV.,  by  G.  P.  R.  James,  iv.,  p.  73. 


282  COLBERT 

publicity.  He  was  accordingly,  the  day  after  his  death,  buried, 
at  night,1  in  the  Church  of  St.  Eustache,  his  remains  being  con- 
signed to  a  tomb  in  the  Chapel  of  St.  Louis  de  Gonzaque,  which 
was  the  private  property  of  the  Colbert  family.2  His  wife,  who 
only  survived  her  husband  for  four  years,  put  up  to  Colbert's 
memory  a  monument,  executed  from  a  design  by  Le  Brun,  which 
represents  the  great  statesman,  on  his  knees,  reading  out  of  a 
book,  held  open  by  an  angel,  and  arrayed  in  the  robes  of  the 
Order  of  the  Saint  Esprit.3  At  the  foot  of  the  monument  are 
figures  of  Religion  by  Tubi,  and  Abundance  by  Coysevox.4  This 
was  one  of  the  monuments  saved  from  destruction  in  1792 
by  Lenoir,  who  had  it  removed  to  the  Musee  des  Petits-Augustins, 
where  it  remained  till  1801,  when  it  was  restored  to  St.  Eustache.5 
So  eminent  a  statesman  and  patriot  as  Colbert  proved  himself 
to  be  needs  no  grand  tomb  or  epitaph  to  perpetuate  his  memory. 
Though  not  free  from  faults,  which  were  largely  the  product  of 
the  corrupt  age  in  which  he  lived,  he  will  ever  be  remembered 
as  one  who  desired  the  good  of  his  nation  as  a  whole,  and  who 
did  not  sacrifice  one  national  force  to  benefit  another.6  In  the 
pages  of  history  he  is  still  "le  grand  Colbert,"  of  whom  it  has 
been  truly  said  that  "  he  accomplished  for  his  country,  to  which 
he  was  sincerely  devoted,  not  indeed  all  that  he  would,  but  all 
that  he  could."7 

1  Martin's  History  of  France,  supra,  p.  634. 

2  Jal's  Dictionnaire  de  Biographie  et  (FHistoire,  p.  399 ;  The  Churches  of 
Paris,  by  S.  S.  Beale,  p.  139. 

3  The  Churches  of  Paris,  by  S.  S.  Beale,  p.  139.  *  Ibid. 

8  Ibid.  It  appears  that  Colbert  had  two  chapels  erected  at  his  own  cost 
in  the  Church  of  St.  Eustache,  Paris,  namely,  one  for  marriages  and  the 
other  for  baptisms.  These,  together  with  the  west  front,  were  afterwards 
destroyed  by  fire,  which  accounts  for  the  great  disproportion  between  length 
and  height  which  the  Church  now  presents  (The  Churches  of  Paris,  by  S.  S. 
Beale,  p.  125). 

6  Martin's  History  of  France,  4th  ed.,  xiii.,  p.  35. 

7  See  Biographie,  Ancienne  et  Moderne,  ix.,  tit.  Colbert,  p.  224. 


LEIBNITZ 

Leibnitz  as  a  Jurist.1 — It  is  only  right  that  Leibnitz  should  be 
included  among  "  The  Great  Jurists  of  the  World."  It  was  he 
who  first  suggested  a  series  of  lives  of  the  chief  jurists  as  one  of 
the  desiderata  of  legal  literature  ;  and  for  many  reasons  he  is  here 
fitly  named.  Leibnitz,  who  originated  so  much,  who  struck  out 
more  new  paths  than  his  own  generation  was  aware  of,  who  is  one 
of  the  half-dozen  great  names  in  philosophy,  who  developed 
mathematics  along  new  lines,  and  who  was  an  innovator  in  logic, 
philology,  history,  and  many  other  regions  of  science,  may  be 
considered  one  of  the  chief  founders  of  modern  jurisprudence. 
He  was  truly,  if  any  one  ever  was,  in  Du  Bois  Reymond's 
phrase,  the  omniscient.  He  is  now  chiefly  looked  upon  as  a 
mathematician,  a  logician,  and  a  metaphysician.  His  philo- 
sophical works  receive  increasing  attention.  Such  is  the  trend 
of  modern  speculation  that  note  is  taken  more  and  more  of  ideas 
which  he  first  developed.  Inquiries  as  to  the  ultimate  constitu- 
tion of  matter  and  the  nature  of  energy  revolve  round  ideas  which 
he  struck  out.  It  is  possible  that  there  will  be,  sonoer  or  later, 
a  revival  of  interest  in  his  conceptions  of  jurisprudence  and  in  his 
legal  works .  It  may  be  doubted  whether  even  in  his  own  country 
full  justice  is  done  to  his  activity  in  jurisprudence,  its  extent  and 
originality.  He  sat  freely  to  all  the  ideas  of  his  own  time ;  he 
looked  beyond  its  necessities  ;  he  had  conceptions  of  law  hi  many 
ways  nearer  to  those  of  our  age  than  those  of  his  own.  One  can- 
not read  his  legal  works — and  the  same  is  more  impressively  true 
of  his  letters — without  marvelling  at  the  richness,  variety,  and 
novelty  of  his  suggestions,  scattered  with  prodigality ;  sugges- 
tions often  left  incomplete  and  indefinite  ;  but  even,  if  mere  hints 
or  surmises,  more  valuable  than  the  laboured  performances  of 
mediocre  minds. 

1  His  father  signed  himself  "Leibniiz."  On  the  title-page  of  his  first 
work  he  described  himself  "  Leibnuzius."  He  sometimes  wrote  "  Leibnitz, 
sometimes  "  Leibniz."  The  date  of  his  birth  was  1640,  that  of  his  death  1716. 

283 


284  LEIBNITZ 

One  point  I  would  emphasize  :  he  was  no  amateur  or  dilettante 
in  law,  no  theoretical  reformer  knowing  it  only  from  books.1  In 
his  lifetime  he  published  little  on  the  subject  of  philosophy  : 
Les  Nouveaux  Essais  sur  V  Entendement  Humain  did  not  see  the 
light  until  some  fifty  years  after  his  death  ;  but  he  was  well 
known  to  his  contemporaries  as  a  copious  writer  on  law.  When  a 
mere  youth  he  published  his  Nova  Methodus  discendce  docendceque 
Jurisprudentice — a  tract  full  of  comprehensive  suggestions,  but 
marked  also  by  that  sobriety  of  judgment  which  distinguished 
his  legal  writings.  "  I  have  been  a  jurist  from  my  youth,  and 
in  more  than  one  Court ;  and  jurisprudence  forms  part  of  practical 
philosophy."  When  still  young  he  wrote  a  tract  entitled  Speci- 
men Difficultatis  in  jure,  sen  Qucestiones  philosophies  amceniores, 
ex  Jure  collector ;  and  he  was  always  turning  aside  to  jurisprudence. 
He  belonged  to  a  family  of  lawyers.  His  grandfather  on  the 
mother's  side  was  editor  of  a  synopsis  of  canon  and  criminal  law. 
Of  himself  he  writes  :  "  ad  jus,  ut  ita  dicam,  necessitudine  rapie- 
batur."  He  had  studied  it  practically  and  theoretically,  and  at 
one  time  with  almost  feverish  zeal.  "  When  I  had  resolved  upon 
the  study  of  law,  I  put  aside  everything  else  for  it."  If  there  was 
one  study  to  which  his  ubiquitous  curiosity  was  constant,  it  was 
jurisprudence.  It  was,  if  any  was,  his  Berufsunssenschaft. 
Leibnitz,  unlike  Bacon,  was  not  an  advocate.  Indeed  he  prob- 
ably never  thought  of  practising  as  such  :  "  judicis  munere 
delectabar ;  advocatorum  aversabar."  At  the  age  of  twenty- 
four  he  was  appointed  a  member  of  the  Court  of  Appeal  of  Mainz. 
He  had  also,  as  Hofrath  in  Hanover,  no  small  practical  experience 
of  legal  work.  For  some  seventeen  years  after  his  return  from 
Jena  he  immersed  himself  in  jurisprudence.  He  composed 
Prozessakten,  and  did  this  technical  work  with  great  skill.2 
Towards  the  end  of  his  life,  when  he  was  in  the  service  of  the 
House  of  Brunswick,  he  was  often  called  away  from  mathematical 
and  philosophical  studies  to  deal  with  legal  questions  of  interest 
to  his  patrons.3 

Whether  he  was  successful  as  a  Judge,  I  do  not  know.     Cer- 

1  "  La  jurisprudence  et  1'histoire  m'ont  occupe  de  ma  jeuncsse  "  (Dutens, 
Opera  I.,  74). 

2  Ho  was  consulted  about  important  matters  by  the  Czar,  Peter  the  Great, 
and  the  Emperor.     He  wrote  at  the  instance  of  the  latter  several  legal 
opinions  ;  e.g.,  as  to  the  succession  to  the  Duchy  of  Tuscany. 

3  Kuno  Fischer  asserts  that  Leibnitz,  in  writing  the  Prozessakten  in  German, 
did  much  to  perfect  that  language  (ii.  66). 


tEtBNTTZ  285 

tainly  he  had  a  high  idea  of  the  duties  of  a  Judge,  as  he  states  in 
his  Nova  Meihodus.  If  I  may  surmise  from  his  writings,  he  had 
the  saving  good  sense  which  makes  learning  a  help  instead  of  an 
impediment  to  a  right  decision.  His  earliest  writings  are  on  law. 
His  legal  works  altogether  are  of  great  extent ;  they  occupy  about 
two-thirds  of  the  fourth  volume  of  Dutens'  edition  of  his  works. 
Further  fragments  have  been  brought  to  light ;  and  we  are  assured 
by  those  who  have  examined  the  Leibnitz  manuscripts  at  Hanover 
that  many  treasures  relating  to  law  have  still  to  be  published.1 
For  years  inquirers  have  been  digging  in  this  quarry,  and  it  is 
not  exhausted. 

Very  often  he  has  been  reproached  for  scattering  his  energies 
over  many  fields.  I  am  not  able  to  judge  how  far  this  marred 
his  work  in  mathematical  and  physical  science,  or  in  philosophy. 
But  this  diversity  of  occupations  and  interests,  this  dissipation 
of  energies,  brought  compensations.  He  gained  in  the  sense  of 
unity  ;  he  saw  things  as  a  whole,  their  relations  and  interaction  ; 
he  escaped  the  vices  due  to  minute  specializing  which  Comte  de- 
plored and  which  have  not  diminished  ;  he  used  the  light  of  one 
science  to  illuminate  another  ;  he  found  in  one  domain  materials 
sorely  needed  elsewhere  ;  the  axioms  recognized  in  one  region 
proved  useful  imported  novelties  in  another.2  He  is  pleading  lor 
himself — he  is  protesting  against  a  fallacy  old  and  enduring,  and 
unjust  to  versatile  minds — when  he  says,  "  Les  combinaisons  des 
choses  qui  paraissent  eloignees  servent  souvent  a  produire  des 
effects  extraordinaires,  et  c'est  encore  les  raisons  pourquoy  ceux 
qui  se  bornent  a  une  seule  recherche  manquent  souvent  de  faire 
des  decouvertes  qu'un  esprit  plus  etendu,  qui  peut  joindre  d'autres 
sciences  a  celles  dont  il  s'agit,  decouvre  sans  peine." 

At  all  events,  to  jurisprudence  he  was  constant.  In  many 
ways,  and  in  some  which  need  not  here  be  adverted  to,  he  recalls 
Bacon.  In  extent  his  legal  writings  probably  equal  those  of  the 
great  Englishman  ;  and,  so  far  as  I  am  able  to  judge,  the  dis- 
cussion of  legal  points  occupies  far  more  of  his  letters  than  do 
similar  topics  in  Bacon's. 

The  impression  to  be  got  from  reading  Leibnitz's  legal  tracts  i ; 

1  See  Rechtsphilosophisches    aus    Leibnitzens    ungedrucktcn   Schriften    von 
Dr.  George  Mollat  (1885).     In  some  of  his  letters  we  get  a.  glimpse  of  tho 
prodigious  variety  of  his  labours  (e.g.,  Dutens,  vi.,  29) ;  the  range  of  reading 
disclosed  in  the  correspondence  is  amazing.     No  wonder  that  he  \yrites  : 
"  Quam  mirifice  distractus  sum,  did  non  potent."     Gouturat,  La  Logique  de 
Leibnitz,  p.  574. 

2  Retires  et  Opwdes  Inedite,  par  A.  Foucher  de  Carol,  287. 


286  LEIBNITZ 

all  in  favour  of  his  practical  sagacity.  No  pedant,  or  admirer  of 
pedantry  in  an  age  when  it  was  common,  he  had  a  passion  for 
knowing  things  as  they  are,  a  contempt  for  lawyers  who  busied 
themselves  with  their  formulae  without  regard  to  the  facts  of 
life  or  history.  He  is  all  for  that  union  of  science  and  practice 
wherein  lies  the  sound  development  of  law.  No  one  perhaps  came 
nearer  than  he  to  his  conception  of  the  man  of  true  learning — 
one  who  knows  all  that  is  worth  knowing  :  "  qui  res  maximas  in 
orbe  cognito  gestas,  quo  usque  hominum  memoria  pertingit, 
animo  complexus  est.  'n  But  he  set  little  store  on  mere  learning. 
Though  widely  read  himself  in  every  part  of  jurisprudence,  he, 
a  diplomatist  and  man  of  affairs,  was  always  dilating  on  the  value 
of  experience ;  he  wished  lawyers  to  keep  a  firm  hold  of  the 
realities  of  life.  Barely  severe  in  his  strictures,  carrying  into 
all  regions  a  spirit  of  serene  tolerance  and  magnanimity,  he  cen- 
sures those  who  will  not  use  their  eyes  and  note  what  is  going  on 
around  them,  but  prefer  to  display  useless  learning.  In  a  re- 
markable passage  in  which  he  speaks  with  a  certain  bitterness 
foreign  to  his  nature,  he  says  : — 

"  In  explicando  Suprematu  difficilem  me  provinciam  suscepisse 
fateor,  et,  quod  quis  miretur,  in  re  tarn  vulgata  prope  intactam. 
Cujus  rei  ratio  est,  quod  illi,  qui  ad  scribendum  plerumque  animum 
appellunt,  miserabili  ingenioruni  morbo  non  nisi  vetera  crepant, 
quorum  nostris  temporibus  vix  apparent  vestigia,  recentium 
incuriosi :  de  quibusdam  jurisperitis  vulgaribus  hoc  non  miror ; 
illis  enim  omnis  sapientia  in  uno  Romani  juris  corpore  conclusa 
videtur  ;  experientia  autem  rerum  humanarum,  si  quam  habent, 
forensis  auditorii  cancellos  non  egreditur ;  unde  non  nunquam 
de  publico  et  gentium  jure  misera  sunt  eorum  judicia.  Hos  ergo 
Caesarem  pro  domino  mundi,  principes  nostros  pro  praesidibus  pro- 
vinciarum,  licet  perpetuis  et  hereditariis,  habere,  minim  non  est ; 
neque  ab  his  aliquid  magnopere  expectes  illustrando  publico 
jure,  quod  nunc  viget.  Sed  illud  semper  miratus  sum,  illustres 
dignitate  et  rebus  gestis  et  eruditione  viros,  cum  ad  scribendum 
accessere,  maluisse  eruditionis  suae  documenta  dare,  quam 
xperientiae  atque  judicii  (Dutens,  iv.  (2)  355)." 

Again  and  again  he  betrays  his  impatience  with  the  frigidam 
eruditionis  affectionem  then  much  in  favour ;  he  does  not  spare 
Grotius  (whom  he  much  admired)  for  not  sufficiently  dealing  with 
facts  of  his  day ;  and  he  is  constantly  dwelling  on  the  rarity  of 
the  combination  of  learning  and  invention.  He  censures  those 

1  letter  to  Huet,  Gerhardt.  iii.,  14. 


LEIBNITZ  287 

jurists  who  secretly  delight  in  the  uncertainty  of  the  law.1  The 
whole  of  the  chapter  in  which  he  inculcates  this  is  worth  reading 
and  demonstrates  his  practical  wisdom.  It  is  true  that,  unlike 
in  this  respect  Bentham  and  some  other  legal  reformers  who  do 
not  appreciate  sufficiently  the  difficulties  which  confront  lawyers, 
he  sees  the  good  points  of  the  existing  legal  system,  its  thorough- 
ness and  the  honesty  of  many  of  its  practitioners.  He  admired 
the  Koman  lawyers  :  "  Dixi  ssepius,  post  scripta  geometrarum 
nihil  extare,  quod  vi  ac  subtilitate  cum  Romanorum  juriscon- 
sultorum  scriptis  comparari  possit  :2  tantum  nervi  inest,  tantum 
profunditatis."  In  the  recently  published  Opuscula,3  edited  by 
Professor  Couturat,  is  a  paper  entitled  "  Ad  Stateram  Juris  de 
Gradibus  Probationuum,"  in  which  Leibnitz  expresses  somewhat 
reluctantly  his  admiration  for  the  ingenuity  and  perseverance 
devoted  by  lawyers  to  comparatively  small  matters.  Over  a 
question  as  to  a  right  of  way,  an  easement  for  grazing  for 
three  goats,  they  will  take  as  much  pains  as  if  it  were  the  Roman 
Senate  dealing  with  Asia  or  Egypt.  Not  that  he  does  not  see 
the  drawbacks  to  this  elaboration ;  he  fears  that  the  substance 
is  often  sacrificed  to  the  observance  of  solemn  forms — "  lassatis 
litigantibus  exhaustisque  inter  judiciorum  moras." 

With  his  strong  practical  sense,  he  had  no  patience  with  the 
delays,  costliness,  and  formalities  of  the  Reichskammergericht,  so 
admirable  in  promise,  so  feeble  in  performance,  strong  only 
against  the  weak;  a  Court  which  often  did  not  decide  until  all 
the  parties  had  died  or  had  changed  their  minds.4 

Leibnitz's  Legal  Works. — His  chief  legal  works  or  tracts  (for 
many  of  them  run  only  to  a  few  pages)  were  these  : — • 

(1)  Specimen  Difficultatis  in  Jure,  sen  Qucestiones  philosophic^ 
amceniores,  ex  Jure  collects,  Leibnitz's  thesis  for  the  degree  of 
Master  of  Philosophy  in  1664  (Dutens  iv.,  68).  He  argues  that 
a  study  of  the  relations  of  philosophy  and  law  will  help  to  remove 
the  contempt  of  students  of  the  latter  for  the  former.  He  dis- 
cusses such  questions  as  these  :  Whether  an  indefinite  proposition 
is  equivalent  to  a  universal  proposition ;  whether  the  maxim 
affirmanti  incumbit  probatio  is  reconcilable  with  the  maxim  quod 
opponens  teneatur  ad  probationem.  He  gives  mathematical  and 
physical  reasons  for  the  rule  attributed  to  Solon  that  he  who 

1  Dutens  iv.,  356. 

2  Letter  to  Kestnor,  iv.,  267.     See  also  iv.,  254.  3  P.  210. 

4  Pfleidcrcr,  446.  See  also  Goethe,  Wahrheit  und  Dichtung,  Werke  xvu., 
p.  70.  Goethe  was  a  praktikant  in  the  Imperial  Court. 


238  LE1BMT2 

digs  a  trench  or  grave  must  leave  a  space  from  the  land  of  his 
neighbour  equal  to  the  depth.  He  also  discusses  the  question 
whether  bees,  pigeons,  and  peacocks  are  wild  animals.  Then 
comes  a  series  of  logical  and  metaphysical  questions  ;  e.g.,  whether 
of  two  contradictions  both  may  be  false  ;  whether  a  person  who 
is  asleep  is  present ;  what  is  the  true  nature  of  a  part  pro  diviso 
and  a  part  pro  indiviso,  etc.  Of  the  seventeen  questions  some 
seem  nowadays  singularly  trivial,  but  perhaps  not  more  so  than 
many  of  the  questions  which  our  Courts  daily  discuss.  A  genera- 
tion which  spends  hundreds  of  pounds  in  determining  what  is 
"an  accident,"  and  which  carries  the  question  from  Court  to 
Court,  cannot  with  any  grace  be  censorious  of  the  scholasticism 
of  Leibnitz's  age. 

(2)  One  of  the  most  luminous  of  his  law  tracts  is  that  entitled  De 
Casibus  Perplexis  ( 1 666) — questions  of  great  difficulty  ;  questions 
as  to  which  some  thought  no  solution  possible  ;  others,  that  the 
matter  should  be  determined  by  lot ;  others,  by  the  decision  of  an 
arbitrator.    He  will  have  it  that  such  expedients  are  unnecessary, 
that  all  cases  can  be  determined  ex  mero  jure  ;  that  no  case  arises 
for  which  jurisprudence  has  not  an  answer.      "Casum  igitur 
(proprie)  perplexum  definio  (eum,  qui  realiter  in  jure  dubius  est  ob) 
copulationem  contingentem  plurium  in  facto  eum  effectum  juris 
habentium,  qui  mine  mutuo  concursu  impeditur.    In  Antinomia 
autem  ipsarum  immediate  legum  pugna  est,  quanquam  et  Per- 
plexitas  Antinomia  qusedam  indirecta  dici  potest."    He  divides 
these  "  cases  "  into  two  classes  :  (a)  Dispositio  perplexa,  cases  in 
which  it  is  clear  who  is  to  be  plaintiff  or  defendant,  and  the 
point  in  controversy  is  whether  there  is  a  right  of  action,  as  we 
should  say  ;  and  (b)  concursus  perplexus,  cases  in  which,  the  right 
of  action  in  certain  persons  being  clear,  the  difficulty  is  as  to 
priority.    With   much   technical   learning   he   illustrates   these 
questions,  particularly  rights  of  preference. 

(3)  De   Nova   Meiliodo  discendce   docendceque  Jurisprudentice, 
composed  about   1667 ;  on  the  whole,  the  chief  statement  of 
Leibnitz's  opinions  as  to  jurisprudence.     Of  this  book  Leibnitz 
says  :  "  Liber  est  effusus  potius  quam  scriptus  in   itinere,  sine 
libris,  sine  poliendi  otio."1     It  is  a  work  of  magnificent  promise 
rather  than  performance.     Part  I.  is  general,  and  deals  with 
matters  common  to  law  and  other  faculties.    The  first  chapter 

1  Dutens,  vi.  4.     See  also  5,  378,  where  Leibnitz  says  that  the  book  was 
composed  in  a  Frankfort  Inn. 


LEIBNITZ  289 

is  headed  "De  Batione  Studiorum  in  universum,"  i.e.,  modus 
perveniendi  ad  statum  (i.e.,  habitum)  actionum  perfectarum 
(p.  1).  He  considers  the  causes  of  character,  which  are  either 
supernatural  (infusio,  divine  or  diabolical)  or  natural  (assue- 
factio).  In  short,  the  first  part  contains  the  elements  of  a  theory 
of  education.  The  second  part  relates  to  jurisprudence,  which  is 
divided  into  didactic,  historical,  exegetic,  polemical ;  in  other 
words,  Leibnitz  adopts  the  divisions  of  theology  upon  the  analogy 
of  which  to  jurisprudence  he  insists ;  a  point,  by  the  way,  to 
which  he  often  returns.  Didactic  or  positive  jurisprudence  con- 
tains express  enactments  and  the  like.  Historical  jurisprudence 
is  divided  into  two  parts — internal  and  external  jurisprudence  ; 
the  latter  is  concerned  with  the  sources  of  law  ;  the  former  with 
the  substance.  Of  exegetical  jurisprudence  there  are  two  kinds 
— (a)  philologia  ac  philosophia  juris ;  (b)  inter pretatio  legum.  The 
latter  is  of  two  kinds — alia  ex  textu,  alia  ad  textum.  I  cannot 
describe  or  do  more  than  refer  to  the  wealth  of  observations  which 
he  makes  on  the  subject  of  the  rules  of  construction,  juridical  logic, 
and  grammar,  or  his  suggestions  as  to  the  formation  of  a  juridical 
lexicon.  I  pass  to  his  remarks  on  "  polemical  jurisprudence." 

The  principles  of  decisions  are  reducible  to  ratio  ex  jure  natures, 
analogy,  and  ratio  ex  jure  civili  certo.  Of  the  jus  natures  there  are 
three  varieties — jus  strictum,  cequitas,  and  pietas.  The  first  is 
not  explained  clearly ;  it  is  nothing  else,  he  says,  than  the  jus 
belli  ac  pads  ;  it  is  reducible  to  the  maxims  suum  cuique  tribuere, 
honeste  vivere,  neminem  Icedere.  Equity  he  defines  as  consisting 
in  a  certain  harmony  or  proportion ;  you  are  not,  if  you  are 
injured,  to  declare  internecine  war ;  you  are  to  seek  restitution, 
consent  to  arbitration,  etc.  The  third  principle  is  the  will  of  the 
ruler,  not  the  crude  will  of  the  strong  man,  but  the  will  of  the 
Ruler  of  rulers,  "  Existentia  igitur  Entis  alicujus  sapientissimi 
et  potentissimi  seu  Dei,  est  juris  naturae  fundamentum  ultimum." 
Leibnitz  next  considers  the  subject  of  legal  reports,  or  collections 
of  decisions  ;  the  great  virtue  in  them  which  he  desiderates  is 
brevity.  I  am  not  sure  that  I  exactly  apprehend  all  that  he 
suggests  in  this  connection,  for  example,  as  to  forming  a  collec- 
tion of  legal  commonplaces  (de  locis  communibus  juris  instituendis). 
It  is  to  be  the  work  of  jurists,  especially  professors  in  universities. 
From  these  reports  should  be  constructed  pandects,  which  need 
not  exceed  two  folio  volumes  ;  "  quia  in  multa  disciplina  et  facili- 
tate plus  librorum,  minus  rerum,  quain  in  jurisprudentia."  He 

20 


290  LEIBNITZ 

sketches  a  course  of  legal  study  to  be  divided  into  three  periods — 
elementary,  exegetical,  and  polemical.  I  may  mention  as  to  the 
last  that  Leihnitz  insists  upon  the  value  of  moots  or  arguments 
on  cases  conducted  in  the  manner  of  a  trial ;  they  are  in  his  view 
an  admirable  preparation  for  practical  life. 

(4)  Specimen  Certitudinis  sen  Demonstrationum  in  Jure  exhibi- 
tum  in  Doctrina  Conditionum,  a  treatise  in  which  Leibnitz  ex- 
pounds the  doctrine  of  conditions  or  hypothetical  propositions  as 
a  part  of  juridical  logic.    It  might  also  be  denned  as  a  treatise 
of  construction  of  instruments  containing  hypothetical  proposi- 
tions.   It  sets  forth  a  long  list  of  theorems  (seventy  in  all)  useful 
in  the  construction  of  wills  and  other  documents  ;  e.g.,  "  existente 
conditione,  jus  conditional  retrotrahitur  ad  tempus  dispositionis 
mero  jure  ;  si  unum  pluribus  applicandum  est,  in  singula  ducitur, 
seu  est  omnium  ab  initio  ;  si  conditio  defecit,  dispositio  vitiatur." 
I  have  not  examined  the  treatise  closely  ;  but  it  is  clear  that  it  is 
drawn  largely  from  the  common  source  of  many  of  the  rules  of 
pleading  once  in  use  in  our  Courts  and  of  our  rules  of  construction. 

(5)  Specimen  Demonstrationum  politicarum  pro  eligendo  Rege 
Polonorum;  composed  about  1668,  and  designed  to  persuade  the 
Polish  nobility  to  elect  as  successor  to  John  Casimir,  Philip 
William  Neuburg,  Count  Palatine.    Under  the  name  of  Georgius 
Ulicovius  Lithuanus,  Leibnitz  composed  this  treatise,  which  had 
a  distinctly  practical  end  :  it  was  intended  to  support  a  particular 
candidature  for  the  throne  of  Poland.    The  argument  takes  an 
immense  sweep  ;  almost  every  part  of  political  philosophy  is 
touched  upon  ;  the  best  polity  for  Europe  and  Christendom  is 
discussed.    Formally  in  some  sixty  propositions,  and  with  im- 
mense accumulation  of  learning,  he  makes  good  his  conclusion. 
Incidentally  there  are  remarks  unfavourable  to  Russia,  which 
Leibnitz  regarded  as  a  menace  to  European  civilization  and  as  a 
possible  second  Turkey.    The  security  of  Germany  was  to  be 
considered  in  the  choice  of  a  King  of  Poland.    The  treatise 
reveals  the  weakness  and  the  strength  of  Leibnitz — his  learning, 
his  acuteness,  his  ingenuity,  and  at  the  same  time  a  marked 
obsequiousness  of  character  ;  a  disposition  to  accommodate  his 
arguments  to  the  temper  of  those  whom  he  addressed.     "To 
please  a  prince,  to  refute  a  rival  philosopher,  or  to  escape  the 
censures  of  a  theologian,  he  would  take  any  pains."1 

1  Sea  Philosophy  of  Leibnitz,  by  Bertrand  Russell,  p.  1.      Interim  cogimur 
accommodare  nos  humanm  imbecillitati  et  utilia  jucundis  condire,  Duteiis,  vi.  69. 


LEIBNITZ  291 

(6)  Ratio  Gorporis  Juris  reconcinnandi,  composed,  with  the  aid 
of  Dr.  Lasser  of  Mainz,  about  1669.     It  is  a  tract  consisting 
of  about    156  brief  paragraphs.     It  starts  by  assuming  that 
Roman  law  will  by  a  sort  of  spontaneous  reception  continue  to 
be  the  common  law  of  Europe.     Its  authority  cannot  be  removed 
without  a  total  subversion  of  law ;  but  its  vices  may  be,  and 
ought  to  be,  removed.    And  he  proceeds  to  point  out  and  illus- 
trate such  vices  ;  which  are  chiefly  superftuitas,  defectus,  obscuritas, 
confusio.    He  describes  (s.  71  et  seq.)  the  effects  of  these  vices, 
among  them  being  :  "  Ita  jus  infinitum,  incertum,  imperceptibile, 
arbitrarium,  antiquum  denique  chaos  reddi  clamarunt  plurimi " 
(s.   76).     He  passes  to  the  remedies  :  this  confusion  is  to  be 
removed  by  Corpore  Juris  Reconcinnato  (s.  83) ;  and  he  proceeds 
to  sketch  the  outlines  of  a  modern  code. 

(7)  De  Matrimoniorum  Principum  Protestantium  in  Gradibus 
solo  canonico  jure  prohibitis  contractorum  validitate  Dissertatio. 
This  was  called  forth  by  the  protest  of  Duke  Charles  of  Mecklen- 
burg against  the  marriage  of  his  brother,  Duke  Christian  of 
Mecklenburg,  with  Madame  de  Chastillon.    The  question  was 
whether  this  marriage  was  contracted  at  a  time  when  a  previous 
valid  marriage  existed  ;  a  question  of  interest  to  several  German 
Princes  ;  according  as  it  was  answered,  they  were  legitimate  or 
illegitimate.    The  book  is  a  closely  reasoned  argument  as  to  the 
marriage  of  Protestants  in  gradu  prohibito,  with  a  multitude  of 
examples.    The  great  principle  established  is  that  the  complete 
power  of  legislating  as  to  marriage  is  vested  in  the  supreme 
authority  of  the  country.     Even  now  the  dissertation  is  in- 
structive as  to  mixed  marriages. 

(8)  In  the  year  1678  Leibnitz  composed,  under  a  feigned  name, 
De  Jure  Suprematus  ac  Legationis  Principum  Germanice,  in  which 
he  discussed  primarily  the  question  whether  at  the  Congress  of 
Nymegen  the  representatives  of  the  German  electors  and  other 
princes  should  be  treated  as  representatives  of  sovereign  States. 
They  were  powerful  princes  with  armies  of  their  own  and  possess- 
ing many  of  the  outward  marks  of  sovereignty.     But  they  had 
taken  an  oath  of  fealty  to  the  Emperor  ;  they  had  paid  homage 
to  him  ;  they  were  in  a  sense  his  vassals  ;  and  they  were  subject 
to  the  Imperial  Court.    Mixed  with  profound  reasoning  as  to 
sovereignty  is  a  strain  of  flattery ;  Leibnitz  here,  as  in  so  many 
other  of  his  writings,  shows  a  resemblance  to  Bacon  in  his  servility 
to  the  great.    After  all  that  has  been  written  on  the  subject  of 


292  LEIBNITZ 

sovereignty,  this  treatise  is  still  remarkable  for  insight  into  the 
nature  of  government  and  for  the  desire  which  it  reveals  to 
bring  political  and  legal  theories  into  accordance  with  facts 
more  complex  and  varied  than  mere  bookmen  are  apt  to  suppose. 
"  Multiply  your  categories  ;  study  present  facts  ;  be  not  the  slaves 
of  your  books  and  your  formulae,"  is  his  advice. 

(9)  Codex  Juris  Gentium  Diplomatics,  published  in  1693  ;  a 
collection  of  treatises  and  State  papers,  preceded  by  an  intro- 
duction in  which  are  unfolded  Leibnitz's  views  on  international 
law.      Leibnitz    foresaw   its   future    development.      It  is   true 
that  he  immersed  it  in   a  theory  as  to  natural  law  ;  but  he 
was  almost  unique  hi  the  attention  which  he  gave  to  treatises 
and  other  instruments  as   evidence  of   the  consent  of  nations, 
more  trustworthy    than  quotations  from    poets,    orators,    and 
moralists. 

(10)  In  1700  appeared  a  supplement  to  the  Codex  Diplomaticus, 
entitled  Mantissa  Codicis  Juris  Diplomatici,  in  which  he  further 
developed  his  ideas  as  to  some  points  of  international  law. 

(11)  In  1701  appeared  Cogitationes  de  Us  quce  juxta  prcesensJus 
Gentium  requirumtur,  etc.    He  discusses  under  the  headings  "  De 
titulis  honorificis,"  "  De  titulis  regiis,"  questions  as  to  what  States 
are  sovereign,  and  the  like. 

(12)  1706.    Compendaria    expositio    juris,   quo    augustissimus 
Borussios  pollet. 

(13)  Observations  de  Principio  Juris.    Leibnitz  discusses  such 
matters  as  the  basis  of  the  law  of  nature,  positive  law,  the  law 
of  nations,  the  definition  and  rule  of  justice. 

(14)  Monita   qucedam  ad   Samuelis   Pufendorfii    Principia,   a 
criticism    of     Pufendorf's     work.      He    was    no     admirer    of 
Pufendorf,    whose    treatise    had    in   Leibnitz's    time    acquired 
authority.    He  refers  to  Pufendorf  as  vir  parum  juris  consuJtus 
et  minime  philosophus  only  ;   the   chief   reproach   being   that 
Pufendorf  derives  law  solely  from  the  will  of  the  superior.    Ac- 
cording to  Leibnitz,  there  is  a  natural  or,  as  he  would  prefer  to 
say,   divine   basis   for   the  rules   which   Pufendorf  regards   as 
arbitrary. 

Law  and  Philosophy. — I  have  not  named  all  Leibnitz's  legal 
works,  nor  have  I  referred  to  the  many  passages  in  his  letters 
and  elsewhere  in  which  he  discusses  legal  problems.  These  were 
labours  sufficient  to  fill  the  life  of  an  ordinary  man  ;  they  at  least 
show  that  Leibnitz  was  a  prolific  writer  on  law. 


LEIBNITZ  293 

A  point  to  be  insisted  on  is  that  Leibnitz  was  no  pure  theorist 
or  admirer  of  pure  theorists.  He  was  always  reiterating  the 
advantages  of  uniting  practice  with  theory.  "  Je  tiens  qu'il  faut 
se  defier  de  la  raison  toute  seule,  et  qu'il  est  important  d'avoir  de 
1'experience,  ou  de  consulter  ceux  qui  en  ont."1  He  is  constantly 
dwelling  on  the  value  of  practical  training.  But  in  his  legal 
writings  he  never  ceases  to  be  the  philosopher.  In  his  tract 
entitled  Specimen  Difficultatis  in  Jure,  sen  Qucesliones  philosophicce 
amceniores,  ex  Jure  collectce,  he  endeavour  to  cure  jurists  of  their 
contempt  of  philosophy.2  He  proposed  to  show  that  philosophy 
was  of  assistance  and  to  convince  them  "  plurima  sui  juris  loca 
sine  hujus  ductu,  inextricabilem  labyrinthum  fore,  et  veteres  suse 
scientise  auctores  mystas  quoque  sapientise  summos  extitisse." 
The  peculiarity  of  modern  German  legal  writers,  certainly  those 
who  treat  of  Rechtsphilosophie,  is  that  they  seek  to  deduce  par- 
ticular rules  from  a  Rechtsidee,  some  Begriff,  or  conception  of 
which  special  rules  are  the  consequence.  I  do  not  question  the 
reasonableness  of  this  process ;  in  fact,  I  do  not  see  how  juris- 
prudence in  the  largest  sense  can  exist  without  these  conceptions. 
I  would  go  farther ;  the  divorce  between  law  and  philosophy, 
which  most  English  students  of  the  former  prize  highly,  is  attended 
by  serious  disadvantages.  It  is  scarcely  conceivable,  for  example, 
that  certain  parts  of  criminal  law  now  in  a  state  of  flux  can  be 
dealt  with  satisfactorily  without  a  discussion  of  some  fundamental 
philosophical  questions.  They  cannot  be  cast  out  without 
violence,  and  they  will  return  even  if  they  are  bidden  begone 
out  of  sight.  He  who  reasons  of  crime  and  punishment  cannot 
ignore  such  questions  as  :  Is  the  will  free,  or  is  free  will  a  mere 
phantom  ?  Are  men  mere  machines  or  automata  ?  If  they  are 
such,  what  is  the  meaning,  what  the  reasonableness,  of  blame  or 
censure  ?  What  is  the  justification  of  responsibility  ?  If  a 
theory  of  punishment  is  based  on  determinist  lines,  such  theory 

1  Quoted  by  Couturat,  La  Logique  de  Leibnitz,  p.  156  ».     A  favourite 
notion  of  Leibnitz  was  the  improvement  of  legal  procedure.     In  one  of  his 
proposals  to  the  Czar,  Leibnitz  says  :  "  J'ai  songe  principalemont  aux  moyens 
d'etablir  la  meilleure  procedure  possible  afin  d'atteindre  le  juste  milieu  entro 
les    actea  arbitraires  de  juges  et  les   process  Europeens    interminables    et 
funestes,  etc." 

2  Here  is  a  characteristic  remark  as  to  the  relations  between  logic  and 
legal  procedure :— "  Quid  aliud  processus  judiciarius  quam  forma  disputandi 
a  scholis  translata  ad  vitam,  purgata  ab  inaniis,  et  auctoritato  publica  ita 
circumscripta,  ut  ne  divagari  impuno  licoat,  aut  torgiversari,  neve  omittatur 
quodcumque   ad   voritatis   indagationom   facere   videri   possit."     Couturat, 
Opuscules,  211.     See  also  Couturat,  La  Logique  de  Leibnitz,  p.  56G,  as  to  the 
parallelism  which  Leibnitz  establishes  between  Logic  and  Law. 


294  LEIBNITZ 

will  have  important  practical  results.1  It  is  difficult  to  work  out 
a  system  of  punishments  without  dealing  with  fundamental, 
ethical,  and  philosophical  questions.  It  is  in  a  sense  true  that, 
as  Leibnitz  said,  "  jurisprudentiam  veram  a  religione  et  philo- 
sophia  inseparabilem  esse."  To  be  sure,  such  discussions  are  apt 
to  breed  logomachies,  and  to  bring  about  a  faithful  repetition 
of  some  of  the  worst  failings  of  the  schoolman.  There  must  be 
constant  contact  with  facts  and  practice  if  jurisprudence  is  not 
to  become  mere  word-spinning.  Leibnitz,  who  would  not  admit 
that  philosophy  and  law  lay  far  apart,  always  insisted  upon 
viewing  the  latter  as  concerned  with  living  affairs. 

I  hesitate  to  speak  of  the  relations  of  Leibnitz  to  the  juris- 
prudence of  his  own  time  ;  that  could  be  done  to  much  purpose 
and  with  accuracy  only  by  one  with  knowledge  which  I  do  not 
possess.     But  some  points  are  clear.     Leibnitz  found  the  juris- 
prudence of  his  tune  a  collection  of  dry  bones  ;  the  lawyers  little 
better  than  soothsayers  and  medicine-men,  proud  of  their  useless 
learning.     He  was  profoundly  impressed  by  the  faults  of  the 
law  of  the  time — its  chaotic  condition,  scattered  through  many 
volumes,  the  important  and  the  trivial  thrown  together  without 
sense  of  proportion,  the  same  rule  expressed  in  different  terms, 
to  the  perplexity  of  the  inquirer,  absurd  attention  given  to  barren 
subtleties.     He  sought  to  purge  it  of  scholastic  barbarities,  and 
bring  about  a  renaissance  of  jurisprudence.    To  pass  from  Leib- 
nitz to  other  contemporary  writers,  so  far  as  I  know  them,  with 
the  exception  of  Bacon,  to  whom  obviously  he  was  much  in- 
debted, is  to  enter  a  land  tenanted  by  shadows  and  hollow  forms  ; 
to  come  upon  endless  discussion  of  texts  ;  refinements  on  refine- 
ments ;   unwearied  accumulations  of   quotations   collected  un- 
critically ;  acceptance  of  the  loosest  statements  as  if  inspired. 
It  was  one  of  the  great  objects  of  his  life  to  rationalize  and  simplify 
jurisprudence.     "  Multi  anni  sunt,  quod  promisi  illustrare  juris- 
prudentiam et  amplissimum  juris  Oceanum  ad  paucos  revocare 
fontes  limpidos  rectse  rationis."2    There  is  no  saying  what  he 
might  have  done  had  he  devoted  more  time  to  giving  effect  to 
the  ideas  which  he  evolved. 

We  see  the  practical  turn  of  his  mind  in  his  remarks  on  legal 
education.  His  dominant  idea  is  that  the  student  is  preparing 
for  action  ;  and  so  he  recommended  the  use  of  moots.  The  legal 

1  See  Die  detorministische  Gegner  dor  Zweckstrafo,  Liszt,  Strafrechtlichc 
Aufsatze,  ii.  25.  2  Diitens,  v-  U8. 


LEIBNITZ  295 

curriculum  which  he  describes  is  intended  to  familiarize  the 
student  with  the  knowledge  of  affairs,  and  is  to  extend  over  two 
years.  He  dwells  upon  the  necessity  of  a  wide  and  thorough 
legal  training  as  a  preliminary  to  practice,  and  he  insists  also, 
with  emphasis  which  the  most  enlightened  modern  advisers  of 
youth  could  not  surpass,  on  the  expediency  of  supplementing 
technical  study  by  general  reading,  travel,  and  acquaintance 
with  the  affairs  of  life.  Having  passed  through  this  novitiate,  the 
young  student  will  be  fit  to  deal  with  legal  affairs.  Possibly  the 
Nova  Meihodus  contemplates  a  plan  of  education  too  vast  for 
intellects  much  less  capacious  than  his  own.  But  it  does  not 
err  on  the  side  of  underrating  the  value  of  practical  training. 
It  is  worth  while  quoting  Leibnitz's  remarks  on  the  effect  of  the 
education  of  the  perfect  lawyer.  We  have  not  much  advanced 
beyond  his  conceptions.  "  Hunc  ego  verum  juris  philosophum, 
hunc  justitiaesacerdotem,  hunc  juris  gentium  et  quod  ex  eo  pendet, 
publici  atque  divini  consultum  dixero ;  cui  possit  committi 
respublica,  quern  neque  ineptae  status  ratiunculse  ad  novandum 
impellant,  neque  a  promovenda  publica  salute  inanis  juridicarum 
quarandum  spinarum  metus  deterreat ;  concident  sponte  sua 
Machellivistarum  convicia  (ipsi  se  politicos,  et,  si  Diis  placet, 
etiam  statistas  vocant)  qui  jurisconsultos  rerum  imperitos, 
cautelarum  scientes,  ineptos  leguleios  vocant,"  &c. 

Leibnitz  and  Law  Reform. — Before  his  time  in  regard  to  many 
things,  he  was  far  in  advance  of  it  as  to  law.  He  advocated 
reforms  some  of  which  have  long  ago  been  carried  out,  but  others 
of  which  are  still  incomplete.  In  his  eyes  the  cardinal  virtues  of 
any  system  of  law  are  brevity  and  perspicuity  ;  he  goes  so  far  as 
to  say  that  it  may  be  better  to  have  unjust  laws  than  laws  un- 
certain and  obscure.  He  admires  the  inimitable  simplicity  and 
judicii  color  naturalis  of  the  early  jurists.  He  who  is  usually 
moderate  in  speech  writes  with  indignation  of  the  legal  chaos 
before  him  :  "jus  infinitum,  incertum,  arbitrarium."  It  is  diffi- 
cult for  us  to  conceive  the  confusion  and  uncertainty  before 
legislation  became  common — before  there  was  a  recognized  organ 
for  expressing  the  will  of  the  community.  What  would  be  the 
state  of  things  if,  to  take  one  branch  of  jurisprudence,  there  had 
been  no  Factory  Acts,  no  Truck  Acts,  no  Employers'  Liability 
Act,  no  Workmen's  Compensation  Act,  no  Coal  Mines  Act ;  if, 
while  great  industrial  changes  were  in  progress  and  new  concep- 
tions of  duties  were  arising,  the  Courts  sought  to  modify  the  law 


296  LEIBNITZ 

by  expending  endless  ingenuity  in  giving  to  old  rules  wholly  new 
meanings  ?  What,  to  pass  to  another  region  of  law,  would  be 
the  result  if  there  had  been  no  statutory  company  law,  and  there 
had  been  attempts  so  to  expand  the  law  as  to  partnership  to 
meet  the  necessities  and  convenience  of  modern  commerce  ?  I 
have  not  read  deeply  in  the  literature  of  that  time  ;  but  it  is  clear 
to  me  that  there  was  a  profound  sense  of  inability  to  stretch  the 
old  rules  so  as  to  meet  new  circumstances  ;  something  like  a 
deadlock  ;  a  conviction  that  the  principles  of  Roman  law  were 
unsuited  to  the  new  and  rising  order  of  things.  To  put  an  end 
to  the  evils  which  Leibnitz  deplored,  he  proposed  large  changes. 
Few  of  them,  so  far  as  I  can  make  out,  he  lived  to  see.  Most  of 
them  have  since  been  carried  out.  One  or  two  still  remain 
dreams  and  hopes.  Among  his  desiderata — some  of  them 
suggested  by  Bacon's  De  Augmentis  Scientiarum — recommended 
in  the  Nova  Meihodus  are  : 

Partitiones  Juris ;  Sciagraphia  Juris  in  Artem  redigendi ; 
Novum  Juris  Corpus  ;  Elementa  Juris  ;  Reformatio  Brocardi- 
corum  ;  Compendium  Menochii  et  Mascardi  de  Probationibus  et 
Praesumptiom'bus  ;  Theatrum  Legale  ;  Historia  Mutationum  Juris  ; 
Historia  Irenica  ;  Philologia  Juris  ;  Philosophia  Juris  ;  Concor- 
dantiae  Juridicae  ;  Tropi,  Formulae,  Adagia  Juris  ;  Arithmetica 
Juris  ;  Antinomicus  Minor ;  Institutiones  Juris  Universi ;  Insti- 
tutiones  Juris  Caesarei ;  Institutiones  Juris  Saxonici ;  Summa 
Titulorum  ;  Leges  Numeratae ;  Versio  Legum  Germanica  ;  Ars 
Hermeneutica  ;  Juris  Naturalis  Elementa  demonstrative  tradita ; 
Scientia  Nomothetica ;  Breviarium  Controversiarum  Juridicarum ; 
Tractatus  Tractatuum  Reformatus ;  Bibliotheca  Juris ;  Loca 
Classica  seu  Sedes  Materiarum  ;  Vitae  Jurisconsultorum  ;  Reper- 
torium  Juris  ;  Pandectae  Juris  Novi. 

A  few  of  these  desiderata  were  anticipated  by  Bacon  ;  some  of 
them  anticipated  suggestions  made  by  Bentham  more  than  a 
century  later  ;  others  were  intended  for  passing  needs ;  others 
could  be  accomplished  only  by  those  possessed  of  Leibnitz's  genius. 
But  the  very  titles  of  some  of  them  are  suggestive.  They  hint 
at  possible  developments  of  jurisprudence  which  more  than  two 
centuries  have  left  unfulfilled. 

His  essentially  modern  spirit  comes  out  in  his  remarks  as  to 
codification  :  he  advocated  the  formation  of  a  code  stating  in 
language  as  homely  as  possible  the  law  as  it  is — a  Codex  Leo- 
poldinus,  as  he  termed  it ;  a  code  not  in  the  old  sense,  but  a 


LEIBNITZ  297 

reasoned,  orderly  exposition  of  legal  principles.  It  is  interesting 
to  compare  his  views  with  those  of  Bacon ;  the  comparison  is 
not  to  the  disadvantage  of  Leibnitz.  It  is  interesting  also  to 
note  his  proposed  divisions  of  the  code  which  he  had  in  his  mind. 
Though  an  admirer  of  Roman  law,  Leibnitz  saw  much  to  censure 
in  it.  He  was  one  of  the  earliest  critics  of  the  division  in  the 
Institutes.  His  chief  objections  to  the  classical  division  were, 
as  to  actions,  that  actions  were  concerned  with  both  persons  and 
things  :  were  brought  by  persons  and  related  to  things.  His 
further  objection  was  :  persona  and  res  are  divisions  of  fact ; 
potestas  and  obligatio  divisions  of  law.  If  a  division  of  fact  is  to 
be  adopted,  why  not  continue  it  ?  Why  not  divide  the  persona 
into  deaf,  dumb,  rich,  poor  ?  Why  not  divide  things  into  many 
kinds  ?  Leibnitz's  suggested  division  was  as  follows  : — 

(1)  Generalia  juris  et  actionum  ;  (2)  Personae ;  (3)  Judicia  ; 
(4)  Jura  realia  ;  (5)  Contractus  ;  (6)  Successiones  ;  (7)  Crimina  ; 
(8)  Jus  publicum ;  (9)  Jus  sacrum.  These  divisions  are  not 
unlike  those  which  have  been  adopted  in  several  modern  codes. 

He  insisted  that  the  principle  of  the  law  was  worth  a  thousand 
commentaries.1 

Among  the  many  original  ideas  which  he  threw  out  is  the  idea 
(subsequently  elaborated  by  Lassalle  in  his  System  der  Envorbenen 
Rechte]  as  to  the  will  (testamentary  succession)  being  dependent 
on  the  belief  in  immortality — •"  testamenta  vero  mero  jure  nullius 
essent  momenti,  nisi  anima  esset  immortalis."  His  reason,  such 
as  it  is,  is  as  follows  :  "  Testamenta  vero  mero  jure  nullius  essent 
momenti,  nisi  anima  esset  immortalis.  Sed  quia  mortui  revera 
adhuc  vivunt,  ideo  manent  domini  rerum."  Heirs  are  merely 
"  procuratores  in  rem  suam."  This  opinion  or  fantasy  was 
adopted  by  Lassalle  to  prove  his  contention  that  rights  apparently 
the  creation  of  others  are  really  the  outcome  of  the  will  of  the 
individual.2  In  Leibnitz  it  appears  as  a  passing  observation  : 
one  which  illustrates  his  ability  to  give  a  reason  for  anything  ; 
the  more  absurd  the  proposition,  one  is  tempted  to  say,  the 
more  brilliant  and  ingenious  the  justification. 

1  "  Ratio  autem  legis  est  instar  mille  commentariorum,  quia  huic  omnis 
ejus  interpretatio  pendet.     Nam  omnis  interpretatio  constat  ampliatione  (ut 
vocant)  ad  casus  similes,  et  limitatione  in  ordine  ad  dissimiles"  (Gerhardt, 
i.  162).     See  as  to  plan  for  shortening  litigation  by  limiting  the  issues, 
Gerhardt,  i.  60  ;  and  for  reducing  all  law  in  use  in  Germany  into  two  or  three 
large  tables,  which  might  bo  hung  upon  walls,  Gerhardt,  i.  161. 

2  Oncken's  Lassalle,  181. 


298  LEIBNITZ 

He  was  all  for  unity  ;  we  may  speak  of  him  as  a  universal 
reconciler.  He  was  always  composing  irenica ;  always  striving 
after  universal  schemes — a  universal  Church,  a  universal  lan- 
guage, a  universal  method  of  writing,  a  universal  coinage,  a 
universal  system  of  weights  and  measures — and  among  such 
schemes  was  a  project  for  a  rational  and  universal  system  of 
jurisprudence.  In  a  letter  to  Hobbes  he  explains  his  plan  to  be 
based  on  Roman  law,  which  in  the  main  accorded  with  natural 
law,  and  which  was  in  use  in  the  greater  part  of  Europe.1 

Leibnitz  and  Jurisprudence. — What  was  Leibnitz's  concep- 
tion of  the  aim  and  object  of  jurisprudence  ?  We  have  not 
arrived  at  so  clear  an  agreement  on  this  point  as  to  make  his 
answer  unimportant.  Is  it  a  sort  of  grammar  of  law,  a  concise 
statement  of  certain  rules  ?  Is  it  the  study  of  the  forms  of  legal 
institutions  and  instruments,  or  is  it  something  much  more  ? 
Is  it  an  attempt  to  discover  order  in  these  various  forms,  to  arrive 
at  the  laws  regulating  all  legal  phenomena  ?  Under  the  once 
common  and  fallacious  assimilation  of  laws  of  nature  and  laws 
enacted  by  society  was  there  a  truth  ?  Is  jurisprudence  wholly 
concerned  de  lege  lata  ?  or  is  it  occupied  de  lege  ferenda  ?  His 
answer  to  these  questions  is  not  precise.  He  was  not  very 
particular  as  to  drawing  the  boundaries  of  sciences.  He  travelled 
freely  across  their  frontiers ;  he  had,-  indeed,  a  predilection  for 
questions  lying  partly  in  the  regions  of  several  sciences.  It  must 
be  owned,  too,  that  he  is  not  very  consistent  and  that,  owing  to 
his  habit  of  pursuing  different  lines  of  study,  abandoning  them 
for  a  time  and  then  resuming  them  without  always  taking  up 
his  investigations  at  the  point  at  which  they  had  stopped,  his 
language  is  often  fluctuating.  A  further  circumstance  is  to  be 
noted  :  in  his  desire  to  propitiate  and  convince  he  accommodated 
his  language  to  his  audience  ;  he  spoke  to  theologians  very  differ- 
ently from  the  manner  in  which  he  addressed  princes  or  scholars.2 

Undoubtedly  he  does  not  distinguish  sharply  between  jurispru- 
dence and  ethics.  In  his  Elementa  Juris  Naturalis,  Leibnitz  defines 
justice  as  "  habitus  (seu  status  confirmatus)  viri  boni."  "  Vir 
bonus  est  quisquis  amat  omnes."  "  Amamus  eum  cujas  felicitate 
delectamur."  He  expresses  the  same  point  thus  :  "  Justitia 
habitus  amandi  alios."  In  the  preface  to  the  Codex  Diplomaticus 

»  Gcrhardt,  Philosoph.  Schriften,i.  82. 

2  See  the  preface  to  CEuvres  de  Leibnitz,  par  A.  Foucher  de  Carol,  ii., 
p.  xi,  as  to  Leibnitz  assuming  now  the  role  of  Protestant,  now  that  of  Catholic, 
in  order  to  bring  about  a  reconciliation. 


LEIBNITZ  299 

he  returns  to  this  point  of  view.  "Justitiam  .  .  .  definimus 
caritatem  sapientis.  .  .  .  Caritas  est  benevolent ia  universalis,  et 
benevolentia  amandi  sivi  diligendi  habitus.  Amare  autem  sive 
diligere  est  felicitate  alterius  delectari,  vel,  quod  eodem  redit, 
felicitatem  alienam  adsciscere  in  suam."  In  his  works  such  ex- 
pressions as  these  are  common  :  "  La  justice  dans  le  fond  n'est  autre 
chose  qu'une  charite  conforme  a  la  sagesse."  "  Cum  vero  (nihil) 
aliud  apud  me  justitia  sit  quam  caritas  ad  normam  sapientis."1 

He  divides  the  Jus  Naturae  into  three  grades  :  Jus  strictum — 
justitia  commutativa ;  cequitas — justitia  distributiva  ;  pietas  (vel 
probitas) — justitia  universalis.  To  these  are  related  three  in- 
junctions— neminem  Icedere,  suum  cuique  tribuere,  honeste  vel 
potius  pie  vivere.2 

He  mixes  jurisprudence  with  theology.  The  latter  is  to  him 
a  special  kind  of  jurisprudence.  Both  rest  on  the  same  founda- 
tion. In  a  letter  to  Conring  (Gerhardt,  i.  160)  he  insists  as 
necessary  foundations  for  justice  a  belief  in  God  and  in  the  im- 
mortality of  the  soul.  Sometimes  he  draws  no  distinction 
between  jurisprudence  and  ethics,  as  in  such  phrases  as  these  : 
"  Jurisprudentia  est  scientia  justi  seu  scientia  libertatis  et 
officiorum  seu  scientia  juris,  proposito  aliquo  casu  seu  facto." 
"  Jurisprudentia  est  scientia  actionum,  quatenus  justee  et  injustse 
sunt."  Sometimes  he  deviates  from  the  ethical  conceptions 
developed  in  certain  of  his  books  ;  e.g.,  "  Justitia  est  virtus  servers 
mediocritatem  circa  effectus  hominis  erga  hominem " — the 
Aristotelian  doctrine.  Sometimes  there  is  an  approximation  to 
the  utilitarian  theory  :  "  Justam  aliquis  in  justam  est  quicquid 
publico  utile  vel  damnosum  est."3  More  than  one  of  his  defini- 
tions come  to  saying  that  one  thing  is  something  else  altogether 
different  from  it. 

It  is  naturally  objected  to  Leibnitz's  notion  of  jurisprudence 
that  it  is  much  too  large.  In  giving  it  a  very  wide  province  he 

1  It  is  worth  while  quoting  his  definition  of  Sapientia :  "  Sapientia  est 
perfecta  eoram  rerum,  qua  homo  novisse  potest,  quae  et  yitse  ipsius  regula 
sit    et    valetudini    conservandse    artibus    omnibus    inveniendis    inserviat." 
See  also  Gerhardt,  vii.  90,  De  Vita  Beata. 

2  See  his  letter  to  Nicaise  (Gerhardt,  ii.  581),  where  he  defines  justice 
as  "charite  reglee  suivant  la  sagesse";  "charite"  as  "  uno  bienveillance 
universelle,"  "bienveillance,"  "une  habitude  d'aimer,"  and  concludes  that 
"  la  felicit6  est  le  fondement  de  la  justice,"  and  that  "  ceux  qui  voudroient 
dormer  les  verifcables  Clements  de  la  jurisprudence,  quo  je  ne  trouv6  pas  encore 
ecrits  comme  il  font,  devroient  commencer  par  1'etablissement  de  la  science 
de  la  felicite."     As  to  la  felicite,  it  consists  of  "un  estat  durable  de  la  pos- 
session de  ce  qu'il  font  pour  gouster  du  plaisir." 

3  iv.  185. 


300  LEIBNITZ 

was  not  alone.  In  the  sixteenth,  seventeenth,  and  eighteenth  cen- 
turies, three  minds  of  the  first  order — Bacon,  Leibnitz,  and  Vico — 
applied  themselves  to  the  study  and  practice  of  law.  All  three  of 
these  great  thinkers  conceived  of  jurisprudence  in  a  very  large 
sense  ;  none  of  them  understood  it  more  comprehensively  than 
Leibnitz.  All  three  of  them  agreed  in  seeking  a  basis  in  the 
order  of  nature,  in  the  constitution  of  society,  for  jurisprudence. 
Leibnitz  does  not  treat  law  as  a  set  of  arbitrary  rules,  similar 
to  those  of  a  popular  game.  In  his  view  it  is  not  a  mere  external 
arrangement,  the  accidental  expression  of  power.  It  arises 
necessarily  out  of  the  constitution  of  society.  Austin  has  taught 
us  to  distinguish  sharply  between  law  in  the  legal  sense  and  law 
as  a  term  of  science,  expressive  of  the  observed  order  of  nature. 
But  dwelling  at  great  length  upon  this  distinction  and  exposing 
a  common  fallacy,  he  has  drawn  away  attention  from  important 
truths.  He  turned,  so  far  as  he  could,  jurisprudence  into  a 
narrow  channel,  and  shut  out  lawyers  from  the  larger  views  and 
fruitful  inquiries  which  Leibnitz  and  Vico  pursued.  I  do  not 
propose  to  discuss  here  a  question  which  I  have  elsewhere 
dealt  with.  But  it  may  be  pointed  out  that  the  study  of 
comparative  jurisprudence  brings  us  nearer  to  Leibnitz's  point  of 
view.  We  now  know  that  there  exists  at  each  stage  of  society 
a  Rechtsordnung  corresponding  to  the  economical  structure  and 
ethical  ideas  of  the  time  ;  that  to  the  economic  skeleton  of  society 
belongs  a  certain  legal  covering  ;  and  that  the  law  and  ethics  of  an 
age  are  of  one  piece.  Modern  sociology  insists  upon  the  close 
relationship  of  all  parts  of  the  social  organization  ;  the  interplay 
of  legal,  ethical,  and  economic  forces,  and  the  harmony  resulting 
therefrom.  In  his  own  language  Leibnitz  conveys  the  same  idea. 
He  too  insists  upon  the  harmony  of  which  laws  are  the  expres- 
sion. As  Hoffding  points  out,  "  in  Leibnitz's  philosophy  of  law, 
as  in  his  whole  system,  the  fundamental  thought  of  harmony 
existing  between  individual  beings  is  prominent." 

It  is  objected  to  Leibnitz's  conception  of  jurisprudence  that  it 
mingles  law  and  theology ;  a  criticism  applicable  to  almost  all 
the  writers  of  his  age.1  To  them  this  fusion  was  as  natural  as  is 

1  Of  theology  he  says  :  "  Quae  est  quasi  jurisprudentia  specialis."  "  Theo- 
logia  species  quaedam  est  jurisprudent!*  universim  sumtse."  There  are 
many  similar  sayings  by  Leibnitz.  My  friend  the  late  Mr.  Taylor  Innes  told 
me  that  in  a  conversation  with  Mr.  Gladstone  the  statesman  said  to  him  with 
emphasis,  "  Believe  mo,  sir,  no  one  can  be  a  perfect  lawyer  who  is  not  a 
a  theologian."  See  De  Arte  Cvmbinatoria,  a.  47  ;  Pichler,  i.  146  ;  i.  202. 
Punishment  was  unintelligible,  Leibnitz  thought,  without  theology. 


LEIBNITZ  301 

to  our  generation  the  consideration  in  one  view  of  the  facts  of 
the  physical  and  mental  world.  Leibnitz  could  not  be  content 
with  a  synthesis  which  did  not  include  theology,  ethics,  and 
law — in  his  view  parts  of  one  whole.  And  there  are  advantages 
in  this  large  treatment ;  advantages  similar  to  those  claimed 
to-day  for  sociology  ;  particularly  the  advantage  of  co-ordinating 
legal  phenomena  with  cognate  facts. 

Leibnitz  and  International  Law. — Leibnitz  is  one  of  the 
founders  of  international  law.  He  was  one  of  the  first  to  take 
steps  to  reduce  to  order  the  mass  of  treaties.  His  preface  to 
the  Codex  Juris  Gentium  Diplomaticus  is  a  review  of  the  whole 
field  of  diplomatics,  and  contains  a  discussion  of  some  of  the 
chief  questions  of  international  law.  He  did  much  to  give 
form  and  definiteness  to  international  law.  He  appreciated 
the  significance  of  Grotius,  to  whom  he  never  refers  without 
respect.  But  he  was  sensible  of  the  uncritical  character  of 
Grotius's  work,  the  confusion  and  disjointed  state  of  the  law 
expounded  therein,  the  absence  of  an  adequate  philosophy 
of  law.  Leibnitz  did  his  best  to  create  what  is  still  a 
desideratum,  an  accurate  and  stable  terminology  of  international 
law.  It  is  true  that  his  ideas  are  coloured  by  his  teaching  as  to 
natural  law,  and  that  in  his  hands  it  took  a  shape  not  unlike 
morality.  But  is  there  an  end  of  the  idea  of  natural  law  ?  May 
it  not,  revised  in  the  light  of  psychology,  history,  and  comparative 
jurisprudence,  have  a  future  before  it  ?  The  notion  of  a  law 
accepted  by  all  persons  is  dead.  But  with  its  death  has  come  the 
truth  that  the  play  of  arbitrary  legislation  is  small ;  that  cus- 
tomary law  is  but  another  name  for  a  group  of  rules  determined 
by  the  ethical  beliefs,  the  economical  conditions,  the  structure 
of  the  society  in  which  it  prevails  ;  and  that  law  is  the  natural, 
that  is  the  inevitable,  outcome  or  concomitant  of  a  particular 
social  organization. 

One  thing  must  impress  the  readers  of  his  tracts  on  inter- 
national law — his  unconsciousness  of  some  of  the  difficulties  which 
press  upon  modern  students.  They  ask,  Who  is  the  law-giver  ? 
What  is  the  authority  or  the  sanction  for  these  rules  ?  Leibnitz 
asks  nothing  of  the  kind,  or  is  at  no  loss  as  to  the  answer.  In 
civilized  states  at  some  epochs  these  questions  might  be  put  with 
equal  propriety  as  to  their  municipal  laws  ;  it  would  be  hard  to 
say  who  is  the  legislator  or  where  the  sovereign  power  resides. 
Certain  jurists,  private  persons,  members  of  no  Court  or  legisla- 


302  LEIBNITZ 

ture,  have  great  authority.  What  they  say  is  accepted  as  law, 
unless  the  counter-dictum  of  some  one  equally  eminent  can  be 
cited.  What  was  the  authority  of  Baldus  or  Cujas  or  the  many 
jurists  whom  Leibnitz  quotes  ?  Much  the  same  as  the  authority 
of  municipal  law.  The  word  of  the  civilian  had  a  force  in  itself. 
It  was  opinion,  but  generally  irresistible  opinion.  Leibnitz — 
who  deprecated  the  eternal  fruitless  logomachies  as  to  definitions 
of  jurisprudence — in  a  letter  to  a  correspondent,  says  on  this 
subject :  "  Nee  video,  quod  prohibeat  consuetudines  plurium 
gentium  annotare,  quas  vim  juris  habere  arbitror,  non  minus 
quam  in  civitate  mores  statute  aequantur.  Atque  haec  adeo  vera 
puto,  ut  ea  quoque,  quae  recepta  patent  inter  gentes  circa  publica 
cujusque  populi  jura  seu  communia  jurium  publicorum  quas  sunt 
apud  diversas  gentes,  ad  jus  gentium  referam." 

Leibnitz  as  an  Historian. — No  account  of  him  would  be  just 
which  did  not  refer  to  his  work  as  an  historian.  Here,  as  in  all 
that  he  did,  he  was  original.  Hip  Annals  of  the  Western  Empire 
are  models  of  precision,  acuteness,  and  conciseness.  Pertz,  the 
best  of  judges,  speaks  of  them  in  the  highest  terms  ;x  a  treatise 
amazing  by  the  knowledge  upon  which  it  is  based  and  the 
sagacity  and  foresight  which  it  displays.  One  of  Leibnitz's  chief 
arguments  is  the  capital  importance  of  the  Isthmus  of  Suez  as 
the  link  between  Europe  and  the  East.2 

Leibnitz  as  a  Politician. — An  account  of  his  labours  as  a 
politician  would  require  a  volume.  His  connection  with  the 
House  of  Brunswick  influenced  him.  His  patron,  the  Duke 
Johann  Friedrich,  who  was  a  warm  admirer  of  Louis  XIV., 
sought  to  exalt  the  position  of  the  lesser  Sovereigns  of  Germany. 
Leibnitz  was  their  advocate.  He  claimed  for  them  the  right 
as  Sovereigns  to  send  ambassadors  to  Nymegen  ;  it  is  the  main 
object  of  his  treatise,  Ccesarinii  Fursternerii  de  Jure  Sivprematus 
(tc  legationum  principium  Germanice  (1677). 

Leibnitz  also  was  a  supporter  of  the  Empire,  in  the  interest  of 
which  he  wrote  much.  He  was  a  warm  advocate  of  the  unity  of 

1  After  enumerating  the  merits  of  the  Annals  of  the  House  of  Brunswick, 
I'erz  observes  :  "  Alles  dieses  sichert  den  Annalen  einen  Ehrenplatz  neben 
den  tiibrigen  Werken  ihres  Verfassers  und  unter  den  ausgezeichnesten  Buchern 
neucTer  Geschichtern,  Baronius,  Raynald  und  Muratori "  (xxv). 

"  C'est  le  lien,  la  barriero,  la  clef,  la  seule  entree  de  deux  parties  du  monde, 
TAsie  et  1'Afrique.  Cest  le  point  de  contact,  le  inarche  cornruun  de  1'Inde 
d'uno  part,  de  1'Europe  de  1'autre.  Je  conviens  que  1'isthme  de  Panama, 
en  Amerique,  pourrait  rivaliser  avec  lui,  si  cette  partie  du  monde  etait  aussi 
fertile  et  si  les  autres  richesses  etaient  prodiguees  avec  la  meme  abondance." 


LEIBNITZ  303 

Germany.  In  support  of  this  he  wrote  in  1670  his  pamphlet, 
"Securitas  publica,  interna  et  externa,"  in  which  he  pointed  out 
the  peculiar  and  unfortunate  position  of  his  country,  which, 
divided  as  it  was,  had  become  the  apple  of  discord.  Ihe  weak- 
ness of  Germany  has  been  the  opportunity  of  those  who  threat- 
ened the  peace  of  Europe.  The  arena  hi  which  was  disputed  the 
supremacy,  it  will  never  cease  to  be  the  occasion  of  bloodshed 
until,  strong  in  unity,  it  will  be  able  to  repel  attacks.1 

Most  of  his  political  writings — and  he  was  a  copious  political 
pamphleteer — were  directed  against  the  aggressions  of  Louis  XIV. 
(e.g.,  "  Nouveaux  Interests  des  Princes  de  V Europe,  Remarques 
sur  un  Manifeste  Francais,  Consultations  sur  les  affaires  gene- 
rales  "). 

A  large  part  of  his  many  political  writings  are  concerned  with 
questions  of  law.  Thus,  in  his  pamphlet,  "  Paix  d' Utrecht 
Inexcusable,"  and  in  his  "  Manifeste  pour  le  defense  des  Droits  de 
Charles  III."  he  argues,  elaborately  and  on  legal  grounds,  in 
favour  of  the  validity  of  the  renunciation  of  all  rights  to  the 
Spanish  throne  by  Anne  of  Austria,  Marie-Terese,  and  Marie- 
Antonia :  "  Renunciations  les  plus  solennelles  que  la  prudence 
humaine  puisse  inventer,  jurees  sur  les  evangiles,  confirmees  par 
les  sermons  de  leur  epoux  et  par  les  traitez  publics  les  plus 
autorisez."  Both  pamphlets  are  masterly  pieces  of  legal  reason- 
ing. They  are  marked,  too,  by  felicity  of  expression  and 
tactful  touches  which  show  that  in  an  age  of  pamphleteers 
Leibnitz  was  one  of  the  most  effective. 

Among  his  political  writings  should  be  classed  his  Projet  de 
Conquete  de  VEgypte,  a  treatise  designed  to  prove  the  expediency 
of  an  expedition  to  Egypt  and  its  conquest  by  France,  not  only 
in  the  interest  of  that  country,  but  of  all  Christendom.  It  is  one 
of  the  many  proofs  of  his  sagacity  that  he,  who  predicted  in  clear 
terms  the  coming  of  the  French  Revolution,  pointed  out  the 
importance  of  the  Isthmus  of  Suez  as  the  link  between  the  East 
and  the  West,  and  added  that  the  only  place  in  the  world  com- 
parable to  it  was  the  Isthmus  of  Panama. 

A  word  as  to  the  character  of  the  man.  Knowing  much,  he 
tolerated  and  pardoned  much  ;  seeing  the  best  in  men  and  all 
that  they  did,  and  always  disposed  to  dwell  upon  points  in  which 
he  agreed  with  them  rather  than  upon  those  as  to  which  he 
differed.  He  had  a  certain  serenity  of  temper,  an  unflagging 
1  See  Pfleiderer,  p.  53. 


304  LEIBNITZ 

desire  for  peace  and  good-will,  scarcely  less  remarkable  than  his 
intellectual  greatness.  He  was  in  all  things  faithful  to  his 
favourite  motto  :  In  Worten  Klarheit,  in  Sachen  den  Nuizen. 

To  bring  these  notes  to  a  close  :  Leibnitz  had  book  learning 
and  its  rare  companion,  a  desire  to  keep  in  touch  with  facts. 
He  sought  to  bring  jurisprudence  into  line  with  other  sciences. 
He  was  interested  in  its  philosophy,  versed  in  its  history.  He  had 
always  present  the  great  object  of  law,  to  do  justice  between  men  ; 
he  rediscovered,  it  may  be  said,  justice  beneath  the  formalities 
and  technicalities  of  his  time  ;  if  he  resembled  Selden  or  Savigny, 
he  also  resembled  Bentham.  He  anticipated  more  or  less  clearly 
many  of  the  future  developments  of  jurisprudence,  and  some 
even  now  dimly  seen,  and  only  by  a  few. 


SAMUEL    PUFKNDORF 


SAMUEL  PUFENDORF 

THE  conception  of  modern  law  in  general  is  based  to  a  large 
extent  on  the  assumption  of  a  contractual  foundation.    The 
ubiquitous  consensus  ad  idem  is  usually  regarded  as  the  predomina- 
ting and  determining  principle.    In  the  process  of  legislation 
"  objective  "  methods  alone  are  applied  and  insisted  on  ;  so  that 
to  offer  arguments  savouring  of  abstract  analysis  is  stigmatized  as 
fantastic,  as  unpractical.     In  other  words,  only  the  positive  con- 
struction of  law  is  held  to  be  valid,  whilst  the  elaboration  and  co- 
ordination of  doctrines  derived  from  axiomatic  principles  of 
natural  law  is  deemed  untenable.    And  yet  these  two  aspects, 
these  two  processes,  cannot  wholly  be  divorced  from  each  other  : 
one  or  the  other  may  for  this  or  that  purpose  be  emphasized  and 
considered  apart,  but  both  are  inseparable  concomitants  of  all 
intellectual,  all  juridical  constructions.     The  "  positivist  "  regards 
the  immediate  needs  of  a  society  of  men  or  of  a  society  of  regular- 
ized communities  or  States  as  the  indispensable  criterion  ;  he  looks 
to  the  outward  manifestations  of  men's  minds,  and  prescribes 
accordingly — he  tacitly  (or  maybe  openly)  holds  that  man  is  the 
measure  of  all  things.     (One  may  well  ask  in  what  respects 
modern  "  pragmatism  "  makes  an  intellectual  and  moral  advance 
on  the  oft-discredited  sophistic  doctrine  of  old  Protagoras  and  his 
school).     On  the  other  hand,  the  "naturalist"  investigates  the 
fundamental  attributes  of  human  consciousness,  invokes  the 
conception  of  cosmic  harmony  and  of  man's  relation  thereto,  and 
points  out  that  certain  conclusions  drawn  from  such  premises  are 
inwardly  approved  and  ought  to  be  explicitly  accepted  by  men 
and  nations  as  unfailing  guides  of  conduct.     There  is  thus  no  real 
antagonism  between  the  two,  and  the  results  of  their  respective 
methods   are   not   necessarily   incompatible.     The   votaries   of 
natural  law  have  no  doubt  often  been  led  into  extravagances 
through  paying  too  little  heed  to  actual  conditions  and  going 
beyond  the  implications  warranted  by  their  data  ;  but  in  this 
respect  the  fault  lies  not  in  the  method  but  in  its  users.     However, 

305  21 


306  SAMUEL  PUFENDORF 

natural  law,  in  spite  of  its  being  frequently  maligned  and  scoffed 
at,  will  continue  to  hold  the  minds  of  men  as  long  as  men  remain 
psychologists  and  moralists.    Indeed,  the  modern  world  that 
casts  it  aside  as  "  stale  and  unprofitable  "  is  actually  enjoying 
the  benefits  of  many  rules  and  institutions  whose  establishment  is 
due  to  the  practices  and  principles  of  previous  generations  relying 
on  and  submitting  to  the  guidance  and  sanction  of  natural  law. 
A  great  deal  of  modern  international  law  is  the  outcome  of  the 
customs  and  rules  of  earlier  nations  and  sovereigns  who  constantly 
appealed  to  natural  law,  and  partly  also  the  result  of  the  advocacy 
of  jurists  like  Gentilis,  Grotius,  Pufendorf  and  others  who,  to  a 
greater  or  lesser  extent,  based  their  contentions  on  the  same 
notion.     Of  all  writers  Pufendorf  is  perhaps  its  most  consistent, 
systematic,  thorough-going  exponent.    An  examination  of  his 
main  work  will  show  how  the  conception  is  interpreted  and  applied 
in  the  relationships  between  men  as  constituting  the  State,  as  well 
as  in  those  between  States  as  constituting  the  "  ci vitas  gentium." 
Life. — Samuel  Pufendorf,  the  son  of  a  Lutheran  pastor,  was 
born  at  Chemnitz  in  January,  1632.    The  first  elements  of  his 
education  he  received  at  Grimma.     Originally  intended  for  the 
ministry,  he  was  sent  to  Leipzig  to  study  theology.    But  there 
dogmatic  doctrines  and  the  prevailing  spirit  of  intolerance  turned 
him  rather  to  the  study  of  philology,  philosophy,  history,  and 
jurisprudence.    To  Grotius  and  Hobbes  he  always  acknowledged 
his  great  indebtedness.     In  1656  he  moved  to  Jena,  where  he  met 
the  mathematician  Erhard  Weigel,  who  introduced  him  to  the 
philosophy  of  Descartes  and  its  demonstrative  methods  of  ratio- 
cination, and  taught  him  that  Euclidean  processes  are  as  applic- 
able to  moral  and  juristic  discourse  as  to  mathematical  inquiries.1 
Early  in  1658  he  became  tutor  in  the  house  of  P.  J.  Coyet,  who 
was  an  ambassador  of  Charles  Gustavus,  King  of  Sweden,  at 
Copenhagen.    At  this  time  the  Swedish  monarch  who  was  pur- 
suing liis  policy  of  aggrandizement  in  Denmark,  extorted  the 
treaty  of  Roeskild,  but  soon  after  recommenced  hostilities.     The 
Danes  at  once  took  retaliatory  measures  against  the  Swedish 
envoys  ;  Coyet  managed  to  escape,  but  the  second  minister,  Steno 
Bjelke,  and  the  whole  suite,  including  Pufendorf,  were  arrested 
and  thrown  into  prison.    An  eight  months'  captivity  was  spent 
by  the  latter  in  reflecting  on  the  foundations  and  sanctions  of 

1  It  will  be  recalled,  in  this  connection,  that  Spinoza's   famous    Ethica 
(Ordine  geomctrico  demonstrate)  was  written  between  1663  and  1665. 


SAMUEL  PtTFENDOKF  307 

law ;  and  after  rejoining  Coyet  in  Holland  he  published  at  The 
Hague,  1660,{his  Elementorum  iurisprudentiae  universalis  libri  III., 
which  was  received  in  many  quarters  with  great  applause.  The 
following  year  he  was  appointed  by  Charles  Louis,  the  elector 
palatine  (to  whom  the  latter  work  had  been  dedicated),  to  the 
chair — expressly  established  for  him — of  Law  of  Nature  and 
Nations  in  the  university  of  Heidelberg.1  This  was  the  first 
public  professorship  of  its  kind,  and  consequently  its  foundation 
marks  a  memorable  event  in  the  history  of  political  and  legal 
science.  In  1667  he  published,  with  the  consent  of  the  elector, 
a  tract  entitled  De  statu  imperil  germanici,  which  exercised  a 
profound  influence  on  German  political  policy,  and  was  translated 
into  several  European  languages.  Pufendorf  had  come,  during 
his  residence  at  Heidelberg,  into  contact  with  many  prominent 
public  men,  as,  for  example,  Boineburg,  whom  he  esteemed  one 
of  the  ablest  of  statesmen,  and  the  elector  himself,  who  also 
commanded  his  high  regard.  The  latter  was  believed  to  have 
supplied  the  author  with  many  data  for  the  last-mentioned 
critical  work.  However,  the  bitter  controversies  that  were  aroused 
by  its  publication  induced  him  to  leave  Heidelberg,  and  so  the 
next  year  he  went  to  Sweden  and  accepted  a  professorship  at 
Lund.  After  issuing  many  "  dissertationes  academicae,"  he  pro- 
duced (1672)  his  most  famous  work,  luris  naturae  et  gentium 
libri  VIII.  This  was  followed  (1673)  by  an  abridgment,  De. 
officiis  hominis  et  civis,  which  was  translated  into  most  of  the 
languages  of  Europe,  including  Russian  by  order  of  Peter  the 
Great.  These  works  were  violently  attacked  in  Sweden  by 
several  professors  and  pastors,  who  were  joined  in  Germany  by 
many  assailants,  especially  amongst  theologians,  including  Albert! 
of  Leipzig.  The  denunciations  of  the  alleged  mischievous  character 
of  Pufendorf's  writings,  on  the  ground  of  their  divorcing  natural 
law  from  theology,  were  vigorously  answered  by  Mm  in  his  Ens 
Scandica  (1676).  In  1677  he  proceeded  to  Stockholm,  where  he 
was  appointed  royal  historiographer  at  the  death  of  Loccenius, 
and  at  the  same  time  was  made  a  Secretary  of  State  and  Privy 
Councillor.  Some  ten  years  later,  following  on  historical  writings 
dealing  with  the  European  States  and  the  Swedish  sovereigns,  there 
appeared  De  habitu  christianae  religionis  ad  vitam  civilem,  and  soon 
after  its  publication  he  was  called  to  Berlin  by  the  Grand  Elector, 

1  It  is  particularly  interesting  to  note  that  some  dozen  years  later  Spinoza 
was  invited  to  the  chair  of  Philosophy  in  the  same  university;  but  he  re- 
fused it. 


308  SAMUEL  PUFENDORF 

was  appointed  historiographer  of  Brandenburg,  and  was  loaded 
with  other  honours.  To  this  last  period  of  his  life  belong  many 
writings  of  a  polemical  character — historical,  religious,  political — 
as,  for  example,  the  posthumous  publications  IiLsfeciale  divinum 
sive  de  consensu  el  dissensu  protestantium  and  De  rebus  gestis 
Frederici  Wilhdmi  magni  electoris  Brandenburgici  comm&ntarorium 
libri  XIX.  A  translation  of  the  latter,  which  is  perhaps  his  most 
important  historical  work,  into  German  as  well  as  French  was 
ordered  by  Frederick  III.  In  1 694  Charles  XI.  of  Sweden  created 
Pufendorf  a  baron  ;  and  in  October  of  the  same  year  he  died,  and 
was  buried  in  the  church  of  St.  Nicholas,  in  Berlin. 

Chief  Works.1 — For  the  purpose  of  the  present  essay,  attention 
will  be  directed  mainly  to  the  De  iure  naturae ;  but  it  will  be  of 
advantage  to  add  a  brief  note  on  one  or  two  other  works  in  order 
to  indicate  the  author's  wide  activities,  his  interest  in  philosophy, 
in  ethics,  in  religion,  in  jurisprudence,  in  economics,  in  politics, 
in  all  social  phenomena.  Indeed,  questions  relating  to  all  these 
subjects  occur  again  and  again  in  the  major  treatise.  It  may  be 
that  in  the  case  of  Pufendorf  devotion  to  such  a  large  field 
dissipated  his  energies  overmuch,  and  therefore  diminished  to 
some  extent  the  value  of  his  purely  juristic  work.  But  a  jurist 
can  scarcely  attain  consummate  skill,  deep  penetration,  and  effec- 
tive power  in  his  own  particular  sphere  if  he  does  not  also  apply 
himself  to  the  various  branches  of  study  directly  bearing  on 
human  life,  individual,  social,  and  political. 

The  De  statu  imperii  germanici  was  published  under  the  pseudo- 
nym of  "  Severinus  de  Monzambano  "  (of  Verona)  at  The  Hague, 
though  it  bore  Geneva  on  the  title-page.  By  its  form,  its  irony, 
its  critical  acumen  it  may  be  regarded  as  a  worthy  forerunner 
of  Montesquieu's  Lettres  Persanes.  The  political  condition  of 
Germany  is  subjected  to  keen  criticism.  Full  of  enthusiasm  and 
sincere  love  for  his  country,2  he  sets  forth  with  biting  wit  the 
fundamental  weakness  of  the  organization  of  the  Holy  Roman 

1  Cf.  P.  Meyer,  Samuel  Pufendorf :  Ein  Beitrag  zur  Geschichte  seines  Lfbens 
(Grimma,  1894),  in  which  booklet,  concerned  mainly  with  Pufendorf 's  gene- 
alogy and  early  life,  there  is  a  list  of  thirty-four  publications. 

-  Cf.  Allgemeine  deutsche  Biographic,  s.v.  Pufendorf  (by  H.  Bresslau), 
Bd.  26  (Leipzig,  1888),  p.  703 :  "  Unbarmherzig,  mit  uberlegeuer  Ironic  und 
kiihler  Nuchternheit,  mit  bitterem  Spott,  der  aber  doch  iiberall  von  inniger 
Vaterlandsliebo  zeugt,  wird  hier  das  triigerische  und  lugenhafte  Gewolk  von 
Phrasen,  mit  denen  die  damalige  Reichpublioistik  die  deutschen  Zustande  zu 
verhiillen  liebte,  durchlochert  und  zerrissen  ;  und  in  erschreckendor  Nacktheit 
treten  die  verkommenen  und  verrottefeen  Zustande  aus  Licht,  in  denen  sich 
das  officielle  Leben  der  deutschen  Nation  bewegte." 


SAMUEL  PUFENDORF  309 

Empire,  the  misconception  as  to  its  being  a  continuation  of  the 
Roman,  he  denies  that  it  conferred  great  benefits  on  the  German 
people,  denounces  the  faults  and  misdeeds  of  the  Austrian  house, 
and  impugns  the  politics  of  the  ecclesiastical  princes.  Judged 
from  actual  practice,  he  declares,  the  government  is  hopelessly 
irregular,  conducted  as  it  is  by  a  strange  medley  of  prelates  and 
princes  of  more  or  less  doubtful  title ;  judged  from  political 
theory,  it  is  no  less  than  a  unique  monstrosity.  After  dealing 
with  the  prevailing  confusion  and  its  causes,  he  suggests  remedies. 
He  does  not  go  to  the  length  of  assenting  to  proposals  that  had 
been  made  as  to  calling  in  French  or  Swedish  intervention,  or 
excluding  Austria  ;  he  insists  rather  that  the  only  way  to  procure 
unity  and  harmony  is  to  establish  a  confederation  of  German 
States  with  a  standing  authority  at  its  head.  Pufendorf  was  the 
first  who  ventured  to  deal  so  plainly  and  forcibly  with  the  existing 
conditions.  By  his  trenchant  criticisms,  political  insight,  and 
masterly  analysis,  he  prepared  the  way  for  the  measure  which 
was  to  put  an  end  to  the  multitude  of  pretty  tyrants  and  mediatized 
princes  ;  and  he  laid  down  more  rational  conceptions  of  polity 
and  sovereignty  in  place  of  the  narrow  scholastic  notions  based 
on  distorted  interpretations  of  Aristotle  and  the  Bible.1 

De  hcibitu  religionis.  This  is,  in  certain  respects,  an  elaboration 
of  doctrines  which  had  been  briefly  suggested  in  the  preceding 
work.  The  limits  of  Church  and  State,  of  the  ecclesiastical  and 
the  civil  authority,  are  clearly  defined  ;  and  the  State  is  certainly 
to  enjoy  supremacy.  The  Church  is  regarded  as  a  union,  resting 
on  voluntary  agreement,  with  various  rights  and  obligations  re- 
lative to  its  particular  sphere  and  its  maintenance  and  security, 
so  that  in  relation  to  the  State  it  stands  in  the  position  of  cor- 
porations in  general.  This  "  collegial  "  system,  adequately  set 
forth  for  the  first  time  by  Pufendorf,  later  played  a  noteworthy 
part  in  Germany — especially  in  Prussia — and  was  the  means  of 
promoting  greater  toleration,  and  of  smoothing  over  difficulties 
in  the  relationships  between  the  Catholic  Church  and  the  Protest- 
ant Governments.2 

1  Bluntschli  bestows  high  praise  on  this  work  of  Pufendorf.     See  Geschichte 
des  allegemeinen  Staatsrechts  (Mtinchen,  1864),  p.  Ill :  "Das  Biichloin  ist  eine 
politische  Schrift  ersten  Ranges  "  ;  p.  120 :  "  Die  Schrift  Pufendorfs  ist  ein 
staatsmannisches    Meisterstiick.     Sie    est   ebenso   ausgezeichnet   dutch   den 
klaren  historischen  Ueberblick  iiber  die  Entwicklungsgeschichte  des  Reiches 
als  durch  die  psychologische  Erkenntniss  seiner  organischen  Mangel.  .  .  ." 

2  On  this  part  of  Pufendorfs  work.  cf.  P.  Lezius,  Der  Toleranzbegriff  Lockes 
und  Pufendorfs  (Leipzig,  1900). 


310  SAMUEL  PTTPENDORP 

The  De  iure  naturae  et  gentium,  a  large  work  in  eight  books, 
presents  an  entire  system  of  jurisprudence,  private,  public,  and 
international,  based  on  the  conception  of  natural  law.  Book  I. 
considers  the  fundamental  principles  of  law  and  its  various 
divisions,  the  meaning  of  the  state  of  nature,  persons  as  natural 
and  as  moral  entities  and  as  fictitious  creations,  society,  right, 
obligation,  sanction.  The  second  book  expounds  further  the 
notion  of  natural  law,  state  of  nature,  the  foundation  and  raison 
d'etre  of  law,  the  validity  of  customs,  the  doctrines  of  necessity 
and  innate  human  reason,  the  relationship  between  natural  and 
positive  law,  the  hypothesis  of  divine  command.  The  next  five 
books  deal  with  numerous  matters  of  private  law,  from  the  point 
of  view  of  the  principles  and  conclusions  emphasized  in  the 
previous  exposition.  The  last  book  discusses  briefly  the  meaning 
of  sovereignty,  and,  from  the  sixth  chapter  to  the  end,  the  law 
of  war  in  its  three  main  stages,  viz.  commencement,  conduct,  and 
conclusion,  and,  finally,  the  establishment  of  treaties,  conven- 
tions, and  alliances. 

In  his  earlier  legal  work,  Elementa  iurisprudentiae  universalis, 
which  embodies,  as  it  were,  a  "  philosophy  of  law,"  Pufendorf 
adopts  the  Euclidean  method,  and  professes  to  establish  certain 
conclusions  by  the  strict  process  of  mathematical  demonstration. 
He  first  defines  a  number  of  elementary  legal  notions,  and  then 
sets  forth  certain  propositions,  as  being  an  analytical  summary 
of  natural  law.  Of  these  some  are  termed  axiomata,  on  the 
ground  that  they  flow  necessarily  from  the  reason  of  man  ;  others 
are  designated  observations,  as  in  them  account  is  taken  of  ex- 
perience also.  From  these  the  power  of  judgment  and  free  will 
as  well  as  self-love  and  the  social  instinct  are  inferred  ;  thence 
the  deduction  is  made  that  every  one  must  inevitably  seek  self- 
preservation,  but  must  do  so  in  such  a  way  as  not  to  injure  or 
imperil  the  welfare  of  society.  The  various  precepts  "  implicitly  " 
contained  in  this  formula  are  inferred,  and  finally  the  conclusion 
is  drawn  that  natural  law  alone  will  not  suffice  in  a  State,  but  must 
be  supplemented  and  fortified  by  positive  legislation. 

From  the  point  of  view  of  composition  these  works  are  at  a 
disadvantage  as  compared  with  those  of  other  great  jurists.  They 
possess  none  of  the  force,  concision,  and  facility  of  the  style  of 
Grotius,  nor  the  variety,  flexibility,  and  personal  element  of  that 
of  Gentilis ;  they  are  often  monotonous,  cumbrous,  inanimate. 
Even  the  greater  part  of  Pufendorf 's  historical  work  is  somewhat 


SAMUEL  PUFENDORF  311 

dry,  although  its  subject-matter  is  particularly  susceptible  of 
bright,  vivid  presentation.  Mackintosh  is  not  sparing  in  his 
praise  of  the  De  iure{  naturae  et  gentium,  but  none  the  less  he 
deplores  that  the  treatise  may  repel  students  because  it  is  "  so 
prolix,  and  so  utterly  devoid  of  all  the  attractions  of  composition . " x 

Natural  Law — Course  of  Development. — In  order  to  under- 
stand better  the  nature  of  Pufendorf's  juristic  work,  its  relation 
to  that  of  his  predecessors,  and  its  influence  on  his  contemporaries 
and  successors,  it  will  be  well  to  consider  briefly  the  conception 
of  natural  law  which  was  prevalent  before  his  time.2 

The  law  of  the  modern  world,  whether  municipal  or  inter- 
national, is  much  indebted  to  natural  law.  Those  who  glorify 
the  positive  school  of  legal  science  are  apt  to  overlook  the  con- 
crete character  of  natural  law,  and  to  assign  to  it  attributes  of 
merely  abstract,  metaphysical  significance.  The  exponents  of 
the  law  of  nature  are  not  always  at  one  in  every  particular,  but 
their  fundamental  conception  is  that  "  Nature  "  represents  the 
supreme,  unifying,  controlling  power  manifesting  itself  in  the 
universe  at  large  ;  and  that  "  Reason  "  is  a  special  aspect  of  this 
principle  as  looked  at  from  the  point  of  view  of  man  and  the 
operation  of  his  mental  and  moral  faculties.  In  so  far  as  men 
are  men  they  possess  common  elements  ;  and  in  their  political 
.and  social  life  these  elements  inevitably  emerge  and  are  recogniz- 
able in  custom  and  law.  Hence  the  substratum  of  this  law  is 
thought  to  be  of  necessity  established  by  the  universal  guiding 
force,  personified  as  Nature.  Such  natural  law  represents  the 
permanent  portion  of  human  law  in  general,  and  it  is  prior  and 
superior  to  positive  legislation,  which  is  only  a  supplement  thereto 
demanded  by  changing  circumstances  in  different  localities. 
Conventional  justice  may  well  elaborate  or  extend  its  applications, 
but  must  not  oppose  its  essential  content  or  violate  its  spirit. 
In  the  field  of  international  relations  the  law  of  nature  was  in 
early  times  repeatedly  appealed  to,  because  on  the  one  hand 
of  its  unimpeachable  sanction,  and  on  the  other  because  of  the 
conflict  of  practices,  and,  where  these  were  generally  recognized, 
their  apparent  inadequacy. 

1  Sir  James  Mackintosh,  A  Discourse  on  the  Study  of  the  Latv  of  Nature  and 
Nations  (London,  1828),  p.  25. 

2  See  Sir  F.  Pollock,  "  History  of  the  Law  of  Nature,"  in  Journal  of  the 
Society  of  Comparative  Legislation,  No.  1,  1900,  pp.  418-33 ;  J.  Bryco,  "  The 
Law  of  Nature,"  in  Studies  in  History  and  Jurisprudence  (Oxford,   1901). 
vol.  ii.,  pp.  112  seq.  ;  and  the  present  writer's  International  Law  and  Custom  nf 
Ancient  Greece  and  Rome  (London,  1911),  vol.  i.,  pp.  78  seq.  and  passim. 


312  SAMUEL  PUFENDORF 

Medieval  writers,  variously  influenced  by  Aristotelian  and  Stoic 
doctrines,  by  Cicero  as  well  as  by  the  Digest,  often  spoke  of  divine 
law  as  forming  another  category,  but  the  idea  of  natural  law 
nevertheless  remained  the  predominating  factor  in  legal  develop- 
ment. As  Prof.  Nys  says  :  "  Les  theories  de  1'egalite  naturelle 
et  d'un  etat  de  nature  ont  rempli  dans  1'histoire  de  Fhumanite 
un  role  bienfaisant,  car  c'est  en  leur  nom  que  presque  tous  ks 
anciens  abus  ont  ete  denonces,  attaques,  detraits."1  Ecclesi- 
astics like  St.  Chrysostom  and  Isidore  of  Seville  considered  that 
the  law  of  nature  was  identical  with  divine  law,  and  that  human 
law  was  based  merely  upon  the  force  of  custom.2  This  view 
was  adopted  five  centuries  later  in  the  Decretum  of  Gratian,3  one 
of  the  oldest  portions  of  the  collected  canon  law,  which  accepted 
also  Isidore's  division  into  ius  naturale,  ius  civile,  and  ius  gentium.4 
St.  Paul  had  already  spoken  of  a  law  written  by  God  on  men's 
hearts  ;  St.  Augustine  had  pointed  to  the  eternal  law  which 
governs  the  City  of  God ;  Dante  conceived  the  all-pervading 
universal  force  to  be  divine  love  ;  Aquinas  distinguished  between 
natural  tendencies  (self-preservation,  protection  and  rearing  of 
families,  etc.)  and  the  precepts  of  reason  (e.g.  in  regard  to  man's 
relationship  with  God  and  with  society),  and  held  (with  the 
Stoics)  that  natural  law  is  the  divine,  eternal  law  as  revealed  to, 
as  shared  by  the  mind  of  a  rational  creature,5  and  is  the  source 
of  human  law  (i.e.  the  positive  laws  of  States).  Thus  "  nature  " 
is  the  criterion  as  to  the  validity  of  human  law,  and  serves  as  a 
final  appeal  against  injustice  ;  as  Suarez  says  :  "  Lex  iniusta  non 
est  lex."6  This  is  not  a  new  principle,  but  a  return  to  the  doctrine 
of  the  Greek  sophists  and  cynics.  In  England  the  law  of  nature, 
outside  the  canon  law,  played  a  comparatively  small  part. 
Bracton  looked  upon  the  law  of  nations  as  a  product  of  natural 

1  E.  Nys,  Les  origines  du  droit  international  (Bruxelles,  1894),  p.  8. 

2  Decretum  Gratiani,  Dist.  prima,  c.  1  :   "  Omnes  leges  aut  divinac  sunt  aut 
humanac.     Divinae  natura,   humanae  moribus  constant,    ideoquc  hae  dis- 
crepant, quoniam  aliae  aliis  gentibus  placent.     Fas  lex  divina  est,  ius  lex 
humana." 

3  To  the  same  effect  Graiian  says,  ibid.  :  "  Humanura  genus  duobus  regitur, 
naturali  videlicet  iure  et  moribus.     Ius  naturale  est  quod  in  legc  et  evangelio 
continetur,  quo  quisque  iubetur  alii  facere  quod  sibi  vult  fieri  et  prohibetur 
alii  inferre,  quod  sibi  nolit  fieri." 

4  On  the  ancient  conception  of  the  relation  between  ius  naturale  and  ius 
gentium,  sec  International  Laic  of  Ancient  Greece  and  Rome,  vol.  i.  pp.  52  seq., 
67  seq. 

5  iSumma  Theo'ogiae,  la,  2ae,  qu.  91,  art  2 :  "  Participatio  legis  aeternae  in 
rationali  creatura  lex  naturalis  dicitur." 

0  J)clcgibns;  III.  19. 


SAMUEL  PUPENDORF  313 

law,  and  William  of  Ockham,  whilst  discriminating  various 
senses  of  ius  naturale,  regarded  it  as  being  due  to  God.1  Again, 
from  time  to  time  sovereigns  appealed  to  natural  law  as  a  ground 
for  legislation,  for  fortifying  their  own  claims  against  the  Pope 
or  monarchs,  or  for  opposing  the  extravagant  contentions  of 
others  ;  and  not  infrequently  the  principle  invoked  was  scarcely 
distinguishable  from  that  of  utility  or  expediency.  In  the 
Renaissance  and  in  the  Reformation  controversies  the  ius  naturale 
occupied  a  prominent  place.  The  contractual  theory  of  govern- 
ment was  regarded  as  depending  on  the  law  of  nature.  Classical 
authority  began  to  displace  that  of  the  schoolmen.  The  ius 
gentium  of  Roman  law  was  sometimes  identified  with  the  natural 
law  of  the  canonists ;  and  in  England  the  Chancellor's  equity 
was  referred  intrinsically  to  the  ius  naturae,  and  by  historical 
kinship  to  the  praetorian  jurisdiction.  In  general,  the  funda- 
mental conception  was  becoming  gradually  divested  of  theological 
significance ;  and  the  Roman  legal  compilations  acquired  a 
preponderance  over  those  of  the  canonists,  so  that  a  more 
secularized  law  of  nature  was  often  appealed  to  instead  of  the 
Church.  Thus,  the  disintegration  of  the  Romano-Germanic 
empire,  the  decay  of  papal  authority,  the  decline  of  feudalism, 
the  discrediting  of  religious  sanctions  tlirough  the  religious 
conflicts,  the  various  speculative  constructions  of  publicists,  the 
resuscitation  of  classical  literature  together  with  Roman  juris- 
prudence conduced  to  the  more  general  acceptance  of  systems 
of  law  and  ethics  on  a  philosophical  instead  of  a  theological 
basis,2  and  to  the  production  of  great  works  (to  speak  only 
of  those  in  the  legal  sphere)  like  those  of  Gentilis  and  Grotius. 
And  to  Grotius  the  indebtedness  of  Pufendorf  was  incalculably 
great. 

Gentilis  set  himself  to  show  that  a  large  body  of  international 
law  could  arise  from  natural  law,  compacts,  and  inveterate 
customs,  and  advised  theologians  to  keep  to  their  own  sphere.3 
Grotius  attempts  to  indicate  that  a  political  philosophy  in  general, 
and  a  juridical  system  in  particular,  can  be  validly  constructed 

1  Dialogus,  Pars  III.,  tract  ii.,  1.  3,  c.  6  :  "  Omne  autcm  ius  naturale  est  a 
Deo  qui  est  conditor  naturae."     (In  the  Lyons  edition,  1494,  at  the  British 
Museum,  I.  B.  41906  (1),  at  fol.  cclxiii.  v°,  col.  2.— This  is  a  work  of  which  a 
modern  edition  is  eminently  desirable.) 

2  On  this  point,  c/.  W.  Hasbach,  Die  allgemeinen  philosophischen  Grundlagen 
der  von  Francois  Quesnay  und  Adam  Smith  legriindcten  politischen  Okonomie 
(Leipzig,  1890). 

3  See  supra,  p.  109. 


314  SAMUEL  PTTFENDORF 

without  the  aid  of  theology  and  its  disputed  doctrines.  He 
begins  with  the  internal  and  immutable  law  of  nature  as  "  dicta- 
turn  rectae  rationis,"  and  implicit  in  the  first  principles  of  things. 
Though  God  is  its  author,  He  cannot  change  it.  Hence  it  is 
distinguished  from  the  ius  divinum  voluntarium,the  more  arbitrary 
laws  of  God,1 — His  revealed  law.  He  elsewhere  remarks  that 
human  nature  may  be  said  to  be  the  mother  of  natural  law,  and, 
through  contractual  relationships  due  to  the  exigence  of  society, 
the  great-grandmother  of  "  civil  "  law.2  Natural  law  does  not 
necessarily  demand  the  establishment  of  particular  institutions, 
private  or  international,  but  it  does  enjoin  on  us  certain  conduct 
towards  them  when  they  have  been  created ; 3  that  is,  it  comprises 
such  rules  of  justice  as  would  govern  men  as  moral  and  responsible 
beings,  living  in  society  independently  of  positive  human  institu- 
tions— in  other  words,  in  a  "  state  of  nature."  Hobbes,  on  the 
other  hand,  whilst  retaining  the  expressions  lex  naturalis,  ins 
naturale  and  admitting  the  immutable  and  eternal  character  of 
natural  law,  gave  them  a  different  interpretation.  Indeed,  his 
doctrine  was  revolutionary,  in  that  his  ius  naturale  indicates  not 
rules  of  supreme  sanction,  but  the  state  of  nature,  wherein  each 
man  might  use  his  power  for  his  own  advantage,  and  be  solely 
concerned  with  his  own  preservation.4  Thus  in  these  circum- 
stances men  were  inevitably  in  conflict  with  each  other ;  and  to 
remove  or  minimize  their  strife  they  agreed  to  renounce  their 
natural  rights,  and  place  them  in  the  hands  of  a  monarch  who 
could  henceforth  command  their  allegiance.  As  his  right  is  due 
to  the  power  conferred  on  him  and  not  to  any  bilateral  engagement, 
there  is  no  restriction  on  the  reasonable  exercise  of  his  sovereignty. 
Amongst  opponents  of  Hobbes  may  be  mentioned  Cumberland, 
who  insisted  on  the  principle  of  utility  and  the  general  good.5 
From  the  point  of  view  of  Pufendorf 's  work  and  its  chronological 

1  De  iure  belli  et  pads,  Proleg.  9  ;  I.  1.  4-5.     Hooker  (Ecclesiastical  Polity, 
Bk.  I.)  had  already  considered  natural  law  as  the  essential  substratum  of  re- 
vealed religion. 

2  Proleg.  16 :  "  Nam  naturalis  iuris  mater  est  ipsa  humana  natura,  quae 
nos,  etiamsi  re  nulla  indigeremus,  ad  societatem  mutuam  appetendam  ferret : 
civilis  vero  iuris  mater  est  ipsa  ex  consensu  obligatio,  quae  cum  ex  naturali 
iuro  vim  suam  habeat,  potest  natura  huius  quoque  iuris  quasi  proavia  dici." 

:!  Grotius,  I.  1.  10,  7.  4  Leviathan,  c.  14. 

5  Cf.  his  definition  of  law  of  nature,  De  legibus  naturae,  v.  1  :  "  Lex  naturae 
est  propositio  a  natura  rerum  ex  voluntate  primao  causae  menti  satis  apcrte 
oblata  vel  impressa,  quae  actionem  agentis  rationalis  possibilem  communi 
bono  maximc  dcsorvicntem  indicat,  et  integram  singulorum  felicitatem  exinde 
solum  obtineri  posse." 


SAMUEL  PUFENDORF  315 

position,  there  is  no  need  to  trace  further  the  subsequent  develop- 
ment of  the  theories  of  "nature  "  and  the  social  contact,  in  the 
hands,  for  example,  of  thinkers  like  Locke,  Montesquieu,  Rous- 
seau, and  others.     Pufendorf  throughout  acknowledged  his  debt 
to  Grotius  and  Hobbes ;  he  often  criticized  the  latter,  whom, 
however,  he  sometimes  misinterpreted,  and  generally  accepted 
with  approbation  the  views  of  the  former,  as  well  as  those  of 
Cumberland.     But  to  a  thinker  like  Spinoza  he  manifested  un- 
disguised hostility ;  he  was  perhaps  unable  to  appreciate  this 
great  philosopher's  doctrines  of  pantheism  and  determinism,  and 
his  views  as  to  the  unity,  infinity,  and  self-containedness  of  nature. 
PufendorPs  Method. — Pufendorf  composed  his  De  iure  naturae 
et  gentium  as  a  professor  writing  for  students  of  law  in  general. 
Grotius  launched  forth  his  work  as  an  ardent  reformer  addressing 
the  nations  of  the  world.     The  work  of  the  later  writer  is  from 
many  points  of  view  so  closely  connected  with  that  of  the  earlier 
that  it  constitutes  almost  an  appendix  to  it,  offering  here  a  com- 
mentary, a  more  detailed  exposition  of  some  matters,  and  there 
(though  less  frequently)  a  refutation  of  others.  Perhaps  it  is  not  too 
much  to  say  that  had  the  De  iure  belli  et  pads  never  been  produced, 
the  De  iure  naturae  et  gentium  would  never  have  appeared,  at  all 
events  in  its  present  form.     Pufendorf  is  to  Grotius  what  Wolf 
is  to  Leibnitz,  Condillac  to  Locke,  what,  in  fact,  the  systematizer 
is  to  the  inventor ;  as  a  French  writer  says  :    "  Ce  que  Fesprit 
d'organization  est  a  Fesprit  d'invention."1    As  has  already  been 
pointed  out,  Weigel,  the  Jena  mathematical  professor,  exercised 
a  great  influence  on  Pufendorf,  who  soon  became  convinced  that 
given  certain  fundamental  principles  appertaining   to   human 
life,  it  was  possible  to  develop  deductively — whether  directly  or 
mediately — an  entire  body  of  valid  conclusions  representing  a 
code  of  conduct.    This  method  likewise  appealed  to  philosophers 
like   Descartes,  Spinoza,  Wolf,  and  others  who  worked  in  more 
or  less  different  fields.     In  the  days  of  Pufendorf  the  boundaries 
of  the  spheres  of  philosophy  and  the  regulative  or  normative 
sciences  were  seldom  clearly  differentiated  and  separately  marked 
out.     So  that  we  find  his  work  comprehending  matters  of  meta- 
physics and  ethics,  politics  and  economics,  as  well  as  jurisprudence ; 
but  amongst  modern  writers  he  was  perhaps  the  first  to  emphasize 
the  distinction  between  duties  of  perfect  obligation  (the  sphere  of 

1  A.  Pranck,  Reformateurs  et  publicistes  de  I' Europe  :    Dix-septieme  Siecle 
(Paris,  1881),  p.  336. 


316  SAMUEL  PUFENDORF 

law)  and  those  of  imperfect  obligation  (the  sphere  of  ethics); 
though  Kant's  statement  of  the  doctrine  is  clearer,  profounder, 
and  more  acceptable.  Likewise  he  separated  natural  law  from 
theology,  as  Spinoza1  had  separated  the  latter  from  philosophy  ; 
and  thereby  both  aroused  the  bitter  hostility  of  the  orthodox. 
Writers  like  Vico  found  fault  with  Pufendorf  as  well  as  with 
Grotius  and  Selden  for  not  taking  divine  Providence  as  a  true 
basis  for  natural  law.  Pufendorf  felt  that  Grotius  in  his  treat- 
ment of  international  relations  had  not  sufficiently  shown  the 
necessary  connection  between  ethical  and  legal  principles  ;  hence 
in  his  De  iure  naturae  et  gentium  he  attempted  to  construct  on 
foundations  derived  from  human  nature  not  merely  an  inter- 
national law,  but  an  entire  system  of  jurisprudence  that  would  be 
universally  and  permanently  applicable. 

Throughout  his  argument  proceeds  logically  ;  sometimes  it  is 
put  in  another  form  to  exhibit  its  consistency  and  cogency.  He 
manifests  a  constant  and  invincible  tendency  to  analyze  and 
classify ;  interminable  divisions  and  subdivisions,  endless  dis- 
tinctions and  discriminations  are  made.  He  frequently  makes 
cross-references  to  his  work,  a  practice  but  little  indulged  in  by 
early  writers  ;  this  insures  uniformity  and  minimizes  self-contra- 
diction. Writers  of  supreme  genius  can  afford  now  and  again  to 
be  inconsistent ;  not  so  those  of  lesser  capacity,  and  those  pos- 
sessing chiefly  systematizing  aptitudes.  He  endeavours  regularly 
to  reinforce  his  generalizations  by  means  of  citations  from  both 
ancient  and  contemporary  authors,  and  also  by  illustrations 
drawn  from  his  knowledge  of  human  psychology. 

His  Theory. — Grotius  conceived  that  the  intrinsic  nature  of 
things  formed  the  foundation  of  law  ;  Hobbes  held  that  its  source 
was  the  will  of  a  sovereign  of  undefined  power.  Pufendorf  effected 
a  certain  compromise  between  these  views.  The  basis  of  legal 
obligation  is  for  him  the  will  of  a  superior,  strong  enough  to 
punish  resistance  and  disobedience,  but  at  the  same  time  con- 
sulting reason  and  justice  so  as  not  to  interfere  unduly  and 
without  cause  with  the  liberty  of  subjects.  The  State  and  the 
power  of  the  emperor  may  be  said  to  be  derived  from  contractual 
transactions,  firstly  between  the  constituent  individuals  of  the 
State,  and  secondly  between  them  and  him  ;  but  in  reality  the 
institution  was  ordained  by  God,  as  peace  is  attainable  only  in 

1  C/.    his   Tractate   theologico-politicus   (1670).      (This   work,    along   with 
Hobbes's  Leviathan,  suffered  synodic  condemnation  in  1671.) 


SAMUEL  PITPENDORF  317 

organized  social  life.  "  Sociability  "  is  the  natural  principle  of 
rights  and  duties.  Natural  law  regulates  the  external  acts  of 
mankind.  The  state  of  nature  is  not  one  of  war,  as  Hobbes  held, 
but  a  state  of  peace.  This  peace,  however,  being  precarious, 
insecure,  it  must  be  insured  by  means  of  positive  legislation, 
which  will  thus  serve  as  a  supplement  to  and  extension  of  natural 
law,  and  will  be  in  accord  with  it.  Pufendorf  is  not  content  to 
see  in  this  sociability  a  fact  of  universal  experience  ;  he  claims  for 
it  a  metaphysical  significance,  and  traces  it  to  more  elemental 
causes. 

The  fundamental  principles  immanent  in  social  phenomena  he 
designates  "  moral  beings,"  entia  moralia,  which  were  created  by 
God — determined  by  the  divine  impositio1 — in  order  to  introduce 
order  and  harmony  into  human  life.  Indeed,  the  very  existence 
of  God  is  perfectly  demonstrated  (in  Pufendorf's  opinion),  not  so 
much  by  reference  to  the  manifestations  of  the  physical  universe 
as  to  mankind's  possession  of  reason,  a  moral  consciousness,  a 
moral  nature,  an  innate  power  to  discriminate  between  good  and 
evil,  between  justice  and  injustice.  These  moral  entities  lie  at 
the  root  of  family  relationships  and  civil  obligations  ;  and  their 
totality  constitutes  the  "  state  of  nature."  They  act  as  guides 
and  monitors ;  and  their  implicit  behests — forming  the  law  of 
nature — may  be  deductively  applied  to  particular  cases  by 
human  individuals  or  groups  acting  in  the  capacity  of  "  moral 
persons."  We  see,  therefore,  that  Pufendorf,  unlike  Grotius, 
repudiated  the  Thomist  doctrine  as  to  the  independent  existence 
of  the  good,  and  affirmed  rather  the  Scotist  principle  that  a  thing 
is  good  simply  because  God  has  imposed  it.  Hence  starting 
from  the  axiom  that  the  divine  will  has  enjoined  on  man  a  peaceful 
and  social  life,  it  follows  on  the  one  hand  that  all  conduct  anta- 
gonistic thereto  is  necessarily  prohibited,  and  on  the  other  that 
everything  tending  to  its  conservation  is  necessarily  commanded. 
From  this  conclusion  all  human  obligations  may  be  derived 
specifically  ;  as  such  they  are  divisible  into  duties  towards  oneself, 
and  those  towards  one's  fellow-creatures.  And  by  the  due  fulfil- 
ment of  these,  one's  duties  to  God  are  performed  at  the  same 
time.2  Then  discrimination  is  made  between  the  duties  of  men 
as  men  and  the  duties  of  men  as  citizens  of  a  given  State.  (In  the 

1  On  this  question  Pufendorf  is  in  opposition  to  Leibnitz,  who  accepted  the 
Thomist  doctrine. 

2  In  the  De  ojficiis,  Pufendorf  placed  the  obligations  towards  God  in  a  category 
by  themselves,  and  before  the  two  other  classes. 


318  SAMUEL  PUFENDOBP 

treatment  of  the  former  he  borrows  much  from  Grotius,  in  that  of 
the  latter  from  Hobbes.)  Non-fulfilment  of  these  duties  would 
mean  the  annihilation  of  society.  As  for  the  law  of  nations, 
Puf endorf ,  like  Hobbes,  considers  it  merely  a  fragment  of  natural 
law  ;  for  States  are  "  moral  persons,"  subject  to  the  same  principles 
of  conduct  as  are  applicable  to  individuals.  Thus  he  holds,  with 
certain  qualifications,  that  there  is  no  really  positive  international 
law  ;  treaties  cannot  per  se  establish  a  law,  they  can  only  confirm 
what  is  already  implicit  in  natural  law.1  All  nations,  including 
non-Christian  and  heathen,  are  governed  by  this  universal  law, 
and  equally  share  its  rights  and  obligations. 

It  is,no  doubt,  easy  to  find  various  defects  in  Puf  endorf 's  theory. 
Sometimes  it  is  vitiated  by  unjustifiable  assumptions,  at  other 
times  by  the  elimination  of  relevant  matters,  and  again  through 
his  occasionally  failing  to  discriminate  between  certain  relative 
conceptions,  hi  spite  of  the  multiplicity  of  his  distinctions.  He 
does  not  recognize  adequately  the  practical  character  of  law, 
private  or  international.  He  misinterprets  Grotius's  use  of  the 
expression  ius  voluntarium  in  reference  to  the  law  of  nations, 
as  based  on  natural  law,  and  denies  that  there  can  be  "  voluntary  " 
and  therefore  mutable  law.  So  that  in  view  of  his  insistence  on 
the  immutable,  invariable  character  of  law,  the  demands  of  time, 
place,  circumstance,  necessity  are  disregarded.  Again,  he 
attaches  himself  too  much  to  the  external  organization  of  natural 
law.  He  tends  to  confuse  legal  obligation  with  legal  sanction, 
the  intuitions  of  the  moral  consciousness  with  the  commands, 
direct  or  indirect,  of  objective  law.  As  to  his  doctrine  that  duty 
is  founded  on  the  will  of  a  superior,  he  does  not  perceive  whether 
the  strength  or  the  justice  of  that  superior  is  the  determining 
factor.  Further,  in  trying  to  better  Grotius's  doctrine,  which 
insists  on  human  sociability,  reason,  and  divine  will  as  the  three- 
fold basis  of  natural  law,  he  almost  entirely  eliminates  the  element 
of  reason  and  associates  the  other  two  in  such  a  way  that  the 
divine  will  exerts  no  perceptible  influence  on  human  sociability 
and  therefore  appears  to  be  of  little  use.  Leibnitz,  in  his  Monita 
quaedam  ad  SamuelisPufendorfii  principia  2  examines  the  philo- 
sophical value  of  Pufendorf 's  doctrines.  He  urges  that  Pufendorf 
unduly  restricts  the  sphere  of  natural  law  in  referring  it  exclu- 
sively to  man's  life  on  earth,  and  neglects  to  exhibit  the  connection 

1  Of.  his  Elementa  iurisprudentiae,  24-6. 

3  Opera,  G  vote.,  ed.  L.  Dutens  (Genevae,  1768) ;  in  vol.  iv.,  pt.  3,  pp.  276  seq. 


SAMUEL  PtJTENDORF  319 

between  the  idea  of  divinity  and  that  of  justice  ;  that  he  makes 
law  occupy  itself  solely  with  external  actions  j1  that  he  does  not 
distinguish  clearly  between  right  and  law,  between  morality  and 
legality  ;  that  his  definition  of  law  as  the  arbitrary  will  of  a 
superior  (namely  God)  is  erroneous  in  that  it  negatives  the 
spontaneous  character  of  duty,  and  necessarily  regards  those 
without  a  superior  as  being  exempt  from  obligations  ;2  that 
justice  does  not  depend  on  the  arbitrary  will  of  God,  but  has  its 
source  in  His  essential  being  in  eternal  and  immutable  truths 
("Neque  ipsa  norma  actionum  aut  natura  iusti  a  libero  eius 
decreto,  sed  ab  aeternis  veritatibus  divino  intellectui  obiectis 
pendet  ").3 

Analysis  of  "  De  iure  naturae  et  gentium."4 — This  is  a  large 
work  in  eight  books  ;  and  its  matter  may  be  conveniently  pre- 
sented in  the  order  of  Pufendorf 's  treatment  but  in  accordance 
with  the  following  modified  classification :  (1)  Fundamental 
principles  of  law,  and  its  divisions  (Book  I.),  (2)  State  of  nature, 
natural  law  (Book  II.),  (3)  Elementary  rights  and  duties  of 
humanity  :  civil  societies  and  sovereignty  (Book  III. — 'Book  VIII. 
c.  5),  (4)  Law  of  war  (Book  VIII.  c.  6.— Book  VIII.  c.  7), 
(5)  Treaties  of  peace,  leagues,  and  other  conventions  (Book  VIII. 
c.  8 — end).  The  third  division  is  of  a  very  comprehensive 
character,  and  occupies  a  large  proportion  of  the  entire  work  ; 
but  for  the  purposes  of  this  essay  its  substance  will  be  but  briefly 
touched  upon.  It  is  important  to  bear  in  mind  that  Pufendorf 's 
object  was  to  set  forth  not  merely  the  outlines  of  a  code  of  law, 
but  the  principles  of  a  philosophy  of  jurisprudence.  Hence  the 
lawyer  must  bear  with  seemingly  superfluous  metaphysical  argu- 

1  Of.  Opera,  6  vols.,   ed.  L.  Dutens  (Genevae,  1768);  in  vol.  iv.,  pt.  3, 
p.  277 :  "  Itaque  neque  aliud  admittendum  est,  quod  insinuat  auctor,  quae 
intra  pectus  latitant,  nee  foris  prorumpunt,  ad  ius  naturae  non  pertinere ;  qua 
ratione  ex  mutilato  fine  iuris  naturae,  etiam  obiectum  eius  nimis  contrahi 
manifestum  est." 

2  Ibid.,  p.  279 :  "  Quae  si  admittimus,  nemo  sponte  officium  faciet ;  immo 
nullum  erit  officium,  ubi  nullus  est  superior  qui  necessitatem  imponat ;  neque 
erunt  officia  in  eos  qui  superiorem  non  habent.     Et  quum  auctori  officium  et 
actus  a  iustitia  praescriptus  aeque  late  pateant,  quia  tota  eius  iurisprudentia 
naturalis  in  officii  doctrina  continetur,  consequens  erit  omne  ius  a  superioie 
decerni." 

3  Ibid.,   p.  279:  Cf.  the  subsequent  observation:    "Neque  enirn    iustitia 
essentiale  Dei    attributum  erit,  si  ipse  ius  et  iustitiam  arbitrio  suo  condidit. 
Et  vero  iustitia  servat  quasdam  aequalitatis  proportionalitatisque  leges,  non 
minus  in  rerum  immutabilitate  divinisque  fundatas  ideis,  quam  sunt  principia 
arithrneticae  et  gcometriae." 

4  The  edition  used  hero  is  that  of  Amsterdam,  1715.— There  is  an  English 
translation  by  Kennett  (London,  1729).  which,  however,  appoars  to  be  based 
more  on  the  French  translation  of  Barbeyrac  than  on  the  Latin  original. 


320  SAMUEL  PITFENDORF 

rnents  and  distinctions  found  in  his  work  (e.g.  those  relating  to 
entities,  modes,  space,  time,  etc.),  and  the  metaphysician  must  be 
sparing  in  his  condemnation  if  he  perceives  that  they  present 
no  definite,  coherent  system  of  philosophy,  and  are  constantly 
perhaps  indiscriminately — associated  with  matters  lying  out- 
side the  sphere  of  metaphysics.  In  the  course  of  the  following 
concise  analysis  critical  observations  will  be  largely  avoided,  as 
enough  will  perhaps  have  been  said  in  other  parts  of  the  essay  to 
indicate  the  jurist's  merits  and  defects.  To  offer  an  elaborate 
critique  of  the  entire  work  would  demand  an  investigation  into 
the  fundamentals  and  relationships  of  many  subjects,  and  would 
therefore  need  several  volumes. 

1.  Fundamental  Principles  of  Law  :  its  Divisions. — Physical 
substances  or  beings  are  the  creatures  of  God,  and  constitute  the 
universe.    All  these   have   their   particular  attributes.    Moral 
entities  ("  entia  moralia  ")  are  certain  modes  or  attributes  super- 
added  to  natural  things  and  motions  by  intelligent  beings,  chiefly 
for  directing  and  tempering  the  freedom  of  man's  voluntary 
actions  and  for  procuring  decent  regularity  in  human  life.1     It 
is  God's  will  that  human  actions  be  moderated  by  definite  princi- 
ples.2   To  be  a  man  necessarily  implies  possession  of  rights  and 
subjection  to  obligations.     The  state  of  man  is  either  natural 
("status    naturalis  ")  or  adventitious   ("status  adventitius "), 
i.e.  as  modified  by  human  institutions  ;3  and  the  relationship  it 
involves  subsists  both  in  time  of  peace  and  of  war.    Peace  is 
common,  when  maintained  through  duties  derived  purely  from 
the  law  of  nature  ;  it  is  particular,  when  its  force  is  due  to  express 
compacts  binding  the  parties  thereto.     Moral  beings  considered 
as  substances  are  called  "  moral  persons "  ;4  they  are  either 
simple  or  compound.     Simple  persons  are  public  (either  political 
or  ecclesiastical)  or  private  (simply  citizens).     Pufendorf  holds 
that  Hobbes5  unnecessarily  erects  legal  fictions,  as  when  a  man  is 
made  to  bear  the  persona  of  an  inanimate  object  or  place,  such  as 
a  church,  a  hospital,  and  that  it  is  better  to  say  plainly  that  certain 
men  are  empowered  by  the  community  to  collect  the  revenue 
settled  for  preserving  such  places  or  things  and  to  bring  or  defend 
actions  that  may  arise  therefrom.6    Compound  moral  persons 

1  I.  1.  3  :  "  Modi  quidem,  rebus  aut  motibus  physicis  superadditi  ab  entibus 
intelligentibus,  ad  dirigendam  potissimum  et  temperandam  libertatem  acluum 
hominis  voluntariorum,  et  ad  ordinem  aliquem  ac  decorem  vitae  humanae 
conciliandum."  2  Ibid.  3  I.  1.  7. 

4  I.  1.  12.  6  Leviathan,  c.  16.  6  I.  1.  12. 


SAMUEL  PUFENDORF  321 

(societies)  consist  of  several  individuals  so  united  that  what  they 
will  or  do  in  virtue  of  that  union  is  deemed  a  single  will  or  a  single 
act.1    They  are  public  (either  civil  or  sacred)  or  private  (families, 
colleges,  or  corporations ) .     Examples  of  the  sacred  are  the  Catholic 
Church,  councils,  synods.     The  civil  may  be  subdivided  into 
general  (e.g.  a  commonwealth)  and  particular  (senate,  parliament). 
Armies  may  be  called  military  societies.    Moral  beings  established 
by  divine  imposition  can  be  destroyed  only  by  the  will  of  God  ; 
those  due  to  human  institution  may  be  abolished  by  human  will, 
without  affecting  the  physical  substance  of  the  persons  or  things 
involved,  e.g.  the  degradation  of  a  man  of  rank  means  the  loss  of 
rights  peculiar  to  that  rank,  and  leaves  intact  all  rights  other 
than  these.    Further,  moral  entities  may  be  considered  as,  or 
by   analogy   with,    modes.     Modes   are   either    "  affectivi "   or 
"  aestimativi,"  i.e.  relate  to  quality  or  to  quantity.     Qualities 
are  formal  (simple  attributes)  or  operative  (which  are  divided 
into  primitive  and  derivative).2    Moral  operative  qualities  of  the 
primitive  kind  are  either  active  or  passive  ;  and  of  the  former 
the  chief  are  power,  right,  and  obligation.3    Power  with  respect 
to  its  efficacy  may  be  perfect  (when  it  may  be  asserted  by  force, 
if  need  be,  as  by  war  or  an  action  at  law),  or  imperfect  (when  it 
may  not  be  so  asserted,  though  it  would  be  "  inhuman  "  to  prevent 
one's  enjoying  it) ;  with  respect  to  its  subject  it  is  personal  or 
transferable  ;  with  respect  to  its  objects,  power  may  be  exercisable 
over  our  own  persons  and  actions  (liberty),  over  our  own  things 
or  goods  (property),  over  the  persons  of  others  (empire  or  com- 
mand, which  may  be  absolute  or  limited),  over  the  things  of 
others  (servitude).4    Pufendorf  then  points  out  the  ambiguity 
of  the  Latin  word  ius,  but  fails  to  give  a  satisfactory  definition 
of  "  right."5    An  obligation  is  that  by  which  a  man  is  bound  under 
a  moral  necessity  to  perform,  or  admit,  or  undergo  anything.6 
As  to  moral  quantity,  it  is  price  in  things,  esteem  in  persons 
(though  both  of  the  latter  may  be  included  under  value) ;  in  the 
case  of  actions,  no  name  is  suggested. 

Next  the  author  discourses  on  the  certainty  of  moral  science, 
which  he  defends  against  those  who  deny  it,7  on  the  human 
understanding,  conscience,  error,8  on  the  freedom  of  the  will,9  on 
moral  actions,10  on  the  rule  of  moral  actions,  or  law  in  general.11 

1  I.  1.  13.  2  I.  1.  17.  3  I.  1.  19.  *  Ibid.          B  I.  1.  20. 

6  Cf.  I.  6.  5  :  "...  qualitatem  moralera  operativam,  qua  quis  praestare  aut 
pati  quid  tenetur." 

7  1.2.  8  I.  3.  9  T.  4.  10  I.  5.  "  I.  6. 

22 


322  SAMUEL  PUFENDORF 

He  distinguishes  law  from  counsel,  compact  or  covenant,  and 
right.    Obedience  to  law  arises  not  from  its  matter  (as  in  counsel), 
but  from  the  legislator's  will,1  as  law  is  the  command  of  a  sovereign 
to  his  subjects,2  who  have  no  power  to  examine  or  reject  it.     Right 
denotes  a  liberty,  but  law  includes  a  bond  restraining  our  natural 
liberty.     It  is  sufficient  if  the  legislator's  will  is  communicated  to 
his  subjects  in  any  way  whatever,  even  "  by  the  internal  sug- 
gestion of  natural  right."    Hence  it  is  a  piece  of  "  inutilis  sub- 
tilitas  "  on  the  part  of  Hobbes  to  hold  that  the  laws  of  nature 
have  force  only  when  promulgated  by  the  word  of  God  in  Holy 
Scripture,  and  not  when  simply  apprehended  by  reason.    He  also 
rejects  Grotius'  view,3  which  implies  the  existence  of  the  just  and 
right  before  that  of  any  rule  of  law.     Obligation  involves  moral 
consciousness,  and  self-censure,  if  the  prescribed  rule  is  not 
obeyed  ;  compulsion  merely  shakes  the  will  by  an  external  force. 
He  alone  is  obliged  who  has  knowledge  of  the  rule,  and  has  a  will 
intrinsically  free,   "able  to  steer  contrary  ways,"  but  which 
perceives  that  it  ought  not  to  depart  from  that  rule.4    Neither 
mere  force5  nor  any  other  natural  pre-eminence  is  alone  sufficient 
for  imposing  an  obligation6  (for  nature  and  law  are  often  contrary 
to  each  other) ;  it  is  necessary  that  one  who  is  to  be  subjected 
to  another's  will  should  have  either  received  some  considerable 
good  from  him  or  should  have  voluntarily  submitted  to  his 
direction.7  Thus  the  doctrine  that  law  is  the  will  of  the  stronger 
must  be  modified. 

Further,  the  law-giver,  as  well  as  the  law,  ought  to  be  known. 
The  use  of  reason  shows  that  the  author  of  the  universe  is  the 
author  of  natural  law.8  Civil  laws  are  made  known  to  subjects 
by  formal  promulgation  ;  but  natural  laws  are  apprehended  by 

1  Pufendorf  refers  to  and  adopts  Hobbes's  distinction  between  law  and 
counsel  (De  Give,  XIV.  1). 

2  I.  6.  1  :  "  Lex  est  eius,  qui  potestatem  habet  in  eos  quibus  praecepit." 
I.  6.  4 :  "...  decretum  quo  superior  sibi  subiectum  obligit,  ut  ad  istius  prae- 
scriptum  actiones  suas  componat." 

3  De  iure  belli  et  pacis,  I.  1.  9-10. 

4  I.  6.  8 :  "  Sequitur  ergo,  ut  ille  obligationis  sit  capax,  qui  et  norma  prae- 
scriptam  potest  cognoscere,  et  voluntatem  habet  intrinsece  liberam,  et  in 
diversa  flexilem  ;  quae  tamen,  ubi  norma  per  superiorem  fuerit  imposita, 
sentiat  ab  eadem  sibi  non  esse  discedendum." 

5  I.  6.  10.     Here  he  criticizes  Hobbes's  view,  De  Give,  XV.  5. 

6  I.  6.  12. 

7  Ibid. :  "  Omnino  agnoscendum  est,  non  solas  vires  sufficere,  ut  mihi  ex 
alterius  voluntate  obligatio  nascatur :  sed  accedere  insuper  oportere,  ut  aut 
ab  isto  insignia  quaedam  bona  sint  in  me  profecta,  aut  ut  ipse  ultro  in  eiusdem 
directionem  consenserim."  8  I.  6.  13. 


SAMUEL  PUFENDORF  323 

reflecting  on  the  intrinsic  significance  of  human  nature.  The 
obligatory  character  of  laws  does  not  depend  on  the  consent  of 
the  subjects — unless  it  be  implicit  consent,  as  when  a  man  agreeing 
to  the  sovereignty  of  another  is  supposed  to  have  agreed  at  the 
same  time  to  all  his  future  acts.1  The  sovereign  must  have 
understanding  as  to  the  fitness  of  his  prescriptions,  and  sufficient 
strength  to  enforce  them  by  penalties.  Thus,  every  law  consists 
of  two  parts,  declaratory  (defining  what  is  to  be  performed  or 
omitted)  and  "  vindicative  "  (the  penal  sanction).2  The  sanction 
of  law  must  consist  rather  in  punishments  than  in  rewards ;  so 
that  the  view  of  Cumberland,  in  admitting  the  latter,  is  not 
sound.3 

In  respect  of  its  origin,  law  is  divine  or  human  ;  in  reference  to 
its  matter,  it  is  natural  or  positive.4  Natural  law  is  that  which 
so  necessarily  relates  to  the  rational  and  sociable  nature  of  man 
that  human  society,  honest  and  peaceful  fellowship  could  not 
exist  without  it  ;5  that  is,  it  has  such  virtue  as  makes  for  the 
good  of  mankind.  Another  reason  for  calling  it  so  is  that  it  is 
recognizable  by  the  common  intelligence  of  men  contemplating 
universal  human  nature.  On  the  other  hand,  positive  law  (called 
by  some  voluntary  law)  is  that  which  emanates  from  the  will 
of  the  law-giver,  and  varies  according  to  the  needs  and  circum- 
stances of  communities.  Human  law  in  the  strict  sense  is  only 
positive,  and  hence  susceptible  to  abrogation  ;  natural  law  is 
immutable. 

Pufendorf  ends  the  first  book  with  a  discussion  on  the  qualities 
of  moral  actions.6  He  examines  in  what  the  goodness  or  evil  of 
actions  consists,7  the  justice  of  actions,8  universal  and  particular 
justice,9  justice  as  distributive10  and  commutative.11  Injury  is  an 
intentional  unjust  action;12  any  harm  ("laesiones  ")  done  in- 
advertently or  unwillingly  is  not  an  "  injury."13  No  injury  is 
done  to  any  man  who  wills  it  ("  volenti  non  fit  iniuria  ").14  The 
view  of  Hobbes,  urges  Pufendorf,  that  an  injury  can  be  inflicted 
only  on  one  with  whom  a  compact  has  been  made  is  imperfect.15 

2.  State  of  Nature  ;  Natural  Law. — The  natural  state  of  man 
is  that  in  which  we  may  conceive  him  to  be  placed  "  by  birth 
itself,"  apart  from  all  inventions  and  institutions  either  human 

I  I.  6.  13.  2  I.  6.  14.  3  Ibid.  4  I-  6.  18. 

6  Ibid.  :  "  Quae  cum  rational!  et   social!  natura  hominis  ita  congmit,  ut 
humano  generi  honesta  et  pacifica  societas  citra  eandem  constare  nequeat." 
6  I.  7.  7  I.  7.  3.  8  I.  7.  6.  9  I.  7.  8.  10  I.  7.  9. 

II  I.  7. 10.          12  I.  7. 15.  13  I.  7. 16.  u  I.  7. 17.          15  I.  7. 15. 


324  SAMUEL  PUFENDORF 

or  inspired  by  God  j1  that  is,  men  would  owe  obedience  neither 
to  each  other  nor  to  a  common  lord.2  In  this  state  the  rights  of 
man  relate  to  the  instinct  of  self-preservation  and  independence  ; 
and  he  is  bound  to  others  simply  in  virtue  of  the  tie  resulting 
from  natural  resemblance.  Pufendorf  holds  that  Hobbes  cannot 
have  meant  that  each  has  unlimited  licence  ;  but  that  each  has 
the  liberty  to  provide  for  the  preservation  of  his  life,  and  has  the 
right  to  act  as  he  likes — it  in  accordance  with  the  light  of  reason. 
Besides,  the  human  race  has  never  been  and  cannot  be  in  a  state 
of  nature  pure  and  simple.  Against  the  state  of  nature  Pufendorf 
sets  "  accessory  states,"  of  which  the  chief  are  marriage,  relation 
of  father  and  son,  that  of  master  and  servant,  the  state  of  a 
citizen  or  member  of  a  civil  society.  There  cannot  be  any  such 
natural  liberty  to  man  as  shall  exempt  him  from  the  obligations  of 
natural  law  or  of  divine  commands.  To  live  without  law  is 
inconsistent  with  human  nature.3  Government,  indeed,  is  natural ; 
it  is  the  design  of  nature  that  men  shall  constitute  governments 
among  themselves.4  The  establishment  of  societies  and  of  positive 
law  is  inevitable.  Further,  the  state  of  nature  is  one  of  peace 
and  not  of  hostility  ;  it  is  not  opposed  to  a  social  life.5  Pufendorf 
emphasizes  that  the  question  is  the  natural  state  not  of  animals 
governed  by  mere  impulse  and  inclination,  but  of  man  endowed 
with  reason  (ratio) — the  controller  of  all  his  other  faculties — 
which  even  in  a  natural  state  has  a  common,  steadfast,  uniform 
measure  to  go  by,  viz.  the  nature  of  things.6  Reason  does  not 
suggest  to  man  that  only  his  particular  interest  shall  be  the  guide 
of  his  conduct.  Indeed  it  dissuades  him  from  making  war,  or 
adopting  other  violent  measures,  without  provocation.  It  points 
out  his  fundamental  obligations,  such  as  to  respect  the  liberty 
and  possessions  of  others,  to  perform  faithfully  all  engagements 
entered  into,  to  promote  spontaneously  the  interest  and  happiness 
of  others  when  a  superior  obligation  does  not  intervene.  Thus 
peace  depends  solely  on  those  obligations  binding  men  as  reason- 

1  II.  2.  1 :  "  In  qua  homo  per  ipsam  nativitatem  const itutus  concipitur, 
prout  abstracta  intelliguntur  inventa,  atque  instituta  humana,  aut  homini 
divinitus  suggesta,  quibus  aliam  velut  faciem  vita  mortalium  induit." 

2  n.  2. 5.  3 IL  i. 

*  II.  2.  4 :  "  Naturale  est  equidem  imperium,  i.e.  naturae  intentio  fuit,  ut 
homines  imperia  inter  se  constituerent." 

6  II.  2.  5  :  "  Nam  status  naturalis  et  vita  socialis  sibi  proprie  non  opponun- 
tur." 

6  II.  2.  9 :  "  Quae  etiam  in  natural!  statu  communem,  eamquo  firniam  et 
uniformem  habet  mcnsuram,  rerum  nempe  naturam.  .  .  ." 


SAMUEL  PUFENDORF  325 

able  creatures  and  does  not  owe  its  origin  to  agreements  and 
conventions.  The  latter  may  well  serve  as  solemn  protestations 
to  confirm  explicitly  the  subsistence  of  mutual  rights  and  duties, 
or  even  to  establish  closer  unions,  e.g.  friendship,  but  they  really 
superadd  nothing  substantial  to  the  obligations  of  the  law  of 
nature.1  Still  it  must  be  confessed  that  in  practice  reason  does 
not  always  exercise  perfect  and  exclusive  sway  ;  the  prevailing 
passions  of  men  have  been  potent  enough  to  drive  them  to  crimes 
and  unjust  wars  in  spite  of  divine  teaching  ;  so  that  as  natural 
peace  is  uncertain  it  must  be  strengthened  by  special  provisions.2 

Natural  law  is  universal,  in  that  it  is  binding  on  the  entire 
human  race,  qua  human.  It  is  perpetual,  and  not  subject  (like 
positive  law)  to  the  changing  circumstances  of  time  and  place.3 
Pufendorf  rejects  Ulpiari's  definition,  which  was  adopted  in  the 
Digest  and  Institutes  of  Justinian  :  "  lus  naturale  est,  quod 
natura  omnia  animalia  docuit."  As  reason  is  not  common  to 
man  and  beast,  so  law  cannot  be.  We  must  suppose  the  Roman 
jurisconsults  to  have  spoken  figuratively.4  Those  who  refer  the 
law  of  nature  to  brutes,  on  the  ground  that  they  are  seen  acting, 
now  and  then,  with  some  appearance  of  regularity  and  design; 
abuse  the  term  law  by  an  undue  and  unnecessary  application  ;5 
for  such  acts  of  the  lower  creatures  are  far  from  corresponding 
to  the  totality  of  human  action  and  obligation. 

Prior  to  the  imposition  of  law,  actions  are  to  be  deemed 
indifferent ;  for  the  legitimacy  of  conduct  depends  on  the  existence 
of  law.  God  in  creating  man  intended  that  his  actions  should 
not  all  be  indifferent,  and  therefore  at  the  same  time  constituted 
a  law  for  his  nature.  Those  who  hold  (like  Grotius6)  that  the 
virtue  or  turpitude  of  actions  determines  natural  law  are  landed 
in  a  vicious  circle.7  [But  this  is  not  the  position  of  Grotius  ;  for 
he  would  say  that  the  essential  honesty  or  baseness  of  the  acts 
commanded  or  forbidden  by  natural  law  comes  from  the  harmony 
or  disagreement,  as  the  case  may  be,  with  a  reasonable  and  social 
nature.  And  this  necessity  is  not  independent  of  divine  will. 
Thus  Pufendorf  and  his  predecessor  are  on  this  point  substantially 
at  one.]  It  cannot  be  said  that  natural  law  is  common  to  God 
and  man.  It  would  be  impious  to  hold  that  it  can  contain  any 
rule  contrary  to  divine  justice  and  sanctity  ;  but  there  is  no 

1  H.  2. 11.  3  II.  2.  12.  3  II.  3.  1. 

4  Cf.  the  explanation  offered  in  the  present  writer's  International  Law  and 
Custom  of  Ancient  O''eece  and  Rome,  vol.  i.,  pp.  83  seq.  6  II.  3.  2. 

8  Cf.  De  iure  belli  et  pacis,  I.  1.  10.  1 .  7  II.  3.  4. 


326  SAMUEL  PTTFENDORF 

perfect  resemblance  between  the  rule  of  human  actions  and  the 
order  according  to  which  God  acts  in  regard  to  His  creatures. 
For  divine  omnipotence  is  absolute,  is  necessarily  independent 
of  all  law  and  obligation.  God  cannot  but  observe  His  promises, 
and  men  ought  not  but  to  observe  theirs.  Hence  human  promises 
involve  obligations,  but  divine  promises  are  made  good  only 
through  grace.  The  intrinsic  nature  of  things  and  the  relation- 
ships between  them  depend  on  divine  determination.1 

Is  natural  law  due  to  general  consent  ?  Those  who  attribute 
the  recognition  of  the  rules  of  natural  law  to  the  consent  of 
mankind  argue  a  posteriori,  and  Hobbes2  (as  Pufendorf  points 
out)  has  demonstrated  the  untenability  of  this  doctrine ;  for 
unanimity  would  in  that  case  be  indispensable,  yet  there  are 
striking  differences  of  opinion  and  custom,3  and  even  amongst 
the  most  famous  people  on  record  diversity  and  contrariety  of 
manners  and  institutions  are  observable.4  Besides,  to  extract 
the  law  of  nature  from  practice  involves  a  further  difficulty,  as 
every  nation  has  a  large  element  of  positive  law  ;  also,  inveterate 
custom  often  assumes  the  semblance  of  natural  reason.5  Never- 
theless, we  are  not  on  this  account  to  infer  that  natural  law  has 
no  existence.  Nor  can  we  hold  that  convenience  and  profit  alone 
are  its  foundation.  Utility  is  of  two  kinds  :  that  which  appears 
such  to  the  depraved  judgment  of  ill-composed  affections 
("  affectuum  male  compositorum  pravo  iudicio  ")  which  are  so 
capricious  and  transitory,  and  that  which  is  universally  such, 
assuring  constancy  and  permanence  ("  quod  in  universum  tale 
est,  et  ad  diuturnitatem  facit ").  Actions  done  in  conformity 
with  the  law  of  nature  have  a  double  excellence  :  they  conduce 
to  the  promotion  of  honour  and  good  credit  of  men,  and  they 
contribute  to  their  happiness  by  furthering  then*  true  interests 
and  advantage.  On  the  other  hand,  actions  done  contrary  to 
the  law  of  nature  are  always  base  and  dishonest,  and  though  they 
now  and  then  bear  some  appearance  of  profit  and  pleasure,  yet 
these  charms  soon  vanish  and  are  replaced  by  evils  and  misfor- 
tunes. If  every  man  considered  only  his  own  private  advantage 
regardless  of  others,  confusion  would  ensue.6  The  adoption  by 
States  of  different  laws  on  the  ground  of  utility  does  not  negative 
the  existence  and  efficacy  of  natural  law.7 

Does  the  law  of  nature  appear  from  the  end  of  creation  ?    It 

1  II.  3.  6.  2  De  Give,  II.  1.  3  II.  3.  7.  *  H.  3.  8. 

6  II.  3.  9.  o  IL  3.  10.  7  II.  3.  11. 


SAMUEL  PTJPENDORP  327 

cannot  be  held  that  divine  and  human  justice  have  a  common 
measure,  that  the  order  prescribed  by  God  to  man  (namely,  the 
observance  of  the  law  of  nature)  indicates  the  end  which  He  pro- 
posed in  creating  the  world.1 

The  principles  of  natural  law  are  revealed  by  the  light  of  un- 
perverted  reason  implanted  by  God  in  man.  Not  that  these  are 
complete  entities  imprinted,  as  it  were,  on  men's  minds  at  birth, 
and  expressible  in  distinct  propositions  as  soon  as  the  faculty  of 
speech  is  acquired  and  without  further  instruction  or  meditation  ;2 
the  observation  of  St.  Paul3  that  natural  law  is  written  in  the 
hearts  of  men  is  merely  figurative.  But  the  capacity  to  obtain  a 
knowledge  of  it  is  imparted  to  men.4  By  contemplating  the 
significance  of  human  life  they  can  discover  a  necessity  of  living 
agreeably  to  this  law,  and  discern  those  principles  by  which  its 
precepts  may  be  effectively  demonstrated,  without  fearing  that 
any  one  may  foist  upon  them  for  natural  law  "  the  ravings  of  his 
ill-purged  brain  or  the  disordered  passions  of  his  mind."5  Thus 
the  true  and  essential  nature  of  man  is  the  origin  of  natural  law  ; 
but  owing  to  the  "  summa  imbecillitas  atque  naturalis  indigentia  " 
of  man  as  an  individual,  he  is  compelled  to  associate  with  others 
and  admit  the  common  good  to  be  his  good.6  Hence  the  funda- 
mental principle  of  this  law  may  be  formulated  thus  :  Every  man 
ought,  as  far  as  in  him  lies,  to  promote  and  preserve  a  peaceful 
sociableness  with  others,  in  harmony  with  the  essential  disposition 
and  purpose  of  the  human  race.7  Sociableness  does  not  imply 
a  mere  propensity  to  join  in  any  society  whatever,  e.g.  irregular 
or  ill-constituted,  but  rather  a  disposition  to  effect  a  union  based 
on  benevolence,  charity,  peace,  and  involving,  as  it  were,  "  a 
silent  and  secret  obligation."  Now  the  duty  to  seek  a  common 
end  of  necessity  implies  the  duty  to  carry  out  the  means  leading 
thereto.  Therefore  all  actions  which  conduce  to  the  advancement 
of  this  mutual  sociableness  are  commanded  by  the  law  of  nature, 
and  all  those  detrimental  to  it  are  forbidden.8  Pufendorf  points 

1  II.  3. 12. 

3  II.  3.  13  :  "  Animis  hominum  ab  ipsa  nativitate  congenita,  et  velut  im- 
pressa  esse  iuris  naturalis  saltern  generalia  praecepta." 

3  Rom.  ii.  15.  *  Cf.  Cumberland,  De  legibus  naturae,  Proleg.  5-7. 

5  II.  3.  13  :  "  Ne  quis  cerebri  sui  male  purgat  deliria,  aut  incompositam 
animi  cupidinem  pro  lege  natural!  venditare  possit."  °  II.  3.  14. 

7  II.  3.  15  :  "  Cuilibet  homini,  quantum  in  se,  colendam  et  cpnservandam 
esse  pacificam  adversos  alios  socialitatem,  indoli  et  scopo  generis  humani  in 
universum  congruentem." 

8  Ibid.  :   "  Omnia,   quae  ad  istam  socialitatem    necessario    faciunt,  ^  iuro 
natural!  praecepta  quae  enadem  turbant  aut  abrumpunt,  vetita  intelligi." 


328  SAMUEL  PUFENDORF 

out  that  this  doctrine  is  in  agreement  with  that  of  Cumberland,1 
and  that  Hobbes's  view2  has  been  by  some  writers  too  rigorously 
interpreted.  But  he  cannot  accept  the  observation  of  Grotius3 
that  natural  law  would  still  obtain  even  if  God  did  not  exist ; 
for  the  obligations  arising  therefrom  are  imposed  by  divine 
Providence.4  The  underlying  sanction  is  referable  to  His  will.6 

Is  there  a  law  of  nations  distinct  from  the  law  of  nature  ? 
Pufendorf  says  he  accepts  the  view  of  Hobbes,6  who  holds  that 
natural  law  is  divided  into  the  natural  law  of  man  and  the  natural 
law  of  States  (i.e.  law  of  nations).  Both  are  made  up  of  the  same 
precepts  ;  for  States  assume,  as  soon  as  they  are  formed,  the 
personal  properties  of  men.  Consequently  there  is  no  positive 
law  of  nations  proceeding  from  a  superior.  The  provisions  due 
to  the  needs  of  human  nature  necessarily  relate  to  natural  law. 
Most  of  the  matters  of  the  ius  gentium  (e.g.  contracts,  modes  of 
acquisition,  etc.)  dealt  with  by  the  civilians  belong  rather  to  the 
law  of  nature  or  to  municipal  law.  Indeed,  the  legal  provisions 
of  many  nations  are  found  to  agree  on  various  points  which  do 
not  depend  on  the  universal  reason  of  mankind  ;  but  such  similar 
laws,  not  arising  from  any  fundamental  universal  obligation,  are 
not  to  be  erected  into  the  category  of  positive  law  of  nations, 
for  they  may  be  altered  or  cancelled  at  the  discretion  of  each 
State  quite  independently  of  the  others.  And  so,  too,  in  the  case 
of  customs,  e.g.  as  to  relaxations  in  war  ;  for  a  belligerent  waging 
war  in  a  just  cause  may  disregard  these  and  observe  simply  the 
law  of  nature,  which  alone  imposes  an  indefeasible  obligation. 
In  restraints  and  mitigations  dependent  on  tacit  consent,  it  seems 
reasonable  that  either  party  should  be  free  to  absolve  himself 
from  them  by  making  a  declaration  to  that  effect,  which  would 
ipso  facto  discharge  the  other  side  too.  Thus  time  and  prevalence 
of  contrary  customs  tend  to  eliminate  such  observances  as  are 
due  to  the  mere  consent  of  peoples  and  not  to  natural  law.  Gro- 
tius regards  some  rights,  e.g.  those  of  embassy,  burial,  etc.,  as 
forming  part  of  the  voluntary  or  the  special  class  of  law  of  nations  ; 
but  this  division  is  not  really  necessary,  as  the  essential  rights  of 
legation  spring  from  the  duty  to  promote  peace,  and  those  of  burial 
from  the  duty  to  observe  humanity ;  and  both  these  duties  are 
already  imposed  by  natural  law.  International  compacts  infinite 
in  number,  diverse  in  character,  and  temporary  in  effect  as  they 

1  Op.  cit.,  I.  4.  2  De  Cive.  I.  2.  3  Prolog.  11. 

4  II.  3.  20.  s  IL  3>  21.  «  De  Cive,  xiv.  4,  5. 


SAMUEL  PUFENDORF  329 

are,  form  the  subject  of  history  rather  than  the  basis  of  law ; 
though,  of  course,  the  observance  of  good  faith  in  such  transac- 
tions is  commanded  by  the  law  of  nature.  Customs,  hi  so  far  as 
they  have  universal  applicability  and  involve  definite  legal 
obligations,  are  attributable  directly  or  indirectly  to  the  pre- 
scriptions of  natural  law  ;  so  that  by  referring  customs  to  the  latter 
as  their  veritable  progenitor  greater  authority  and  a  higher 
sanction  are  assigned  to  them,  than  by  deriving  them  from  mere 
conventions  of  peoples.1 

This  distinction  leads  to  the  division  of  duties,  so  far  as  they 
concern  others,  into  absolute  and  conditional,  or  duties  of  perfect 
obligation  and  those  of  imperfect  obligation.  (Natural  law 
governs  also  man's  behaviour  towards  himself.)  Absolute  duties 
bind  all  men  at  all  tunes  and  in  all  conditions,  independently 
of  human  institutions.  Conditional  duties  presuppose  certain 
civil  forms  and  methods  to  have  been  voluntarily  constituted  ;  for 
example,  certain  acts  may  be  performed  at  pleasure,  but  when 
once  performed  a  moral  necessity  or  obligation  supervenes  by 
virtue  of  some  precepts  of  the  law  of  nature,  or  the  manner  and 
circumstances  of  the  acts  are  thereby  adjusted  and  determined. 
Thus  there  is  a  constant  relationship  between  natural  law  and 
positive  law  ;  to  violate  the  latter  may  well  involve  an  infringe- 
ment— mediate  or  indirect — of  the  former.  But  positive  law 
does  not  form  an  intrinsic  portion  of  natural  law  so  as  to  amount 
to  identity  ;  natural  law,  indeed,  commands  obedience  to  the 
sovereign,  but  his  dominion  is  exercised  in  virtue  of  his  subjects' 
consent,  i.e.  through  a  binding  engagement.  There  is  this  great 
difference  ever  to  be  considered  :  natural  conditional  laws  are 
derived  from  the  universal  constitution  of  the  human  race,  whilst 
civil  positive  laws  depend  only  on  the  particular  interests  of 
community,  or  on  the  good  pleasure  of  its  legislator.2 

3.  Certain  Elementary  Eights  and  Duties  ;  Civil  Societies  and 
Sovereignty. — After  considering  in  general  the  duties  of  man 
towards  himself,  as  to  the  care  of  his  body  and  the  improvement 
of  his  mind,3  and  in  particular  the  primary  duty  of  self-defence,4 
Pufendorf  examines  the  doctrine  of  necessity.5  Most  laws, 
especially  positive,  are  deemed  to  except  circumstances  of  urgent 
necessity,  i.e,  to  lose  their  binding  force  when  their  observance 
would  obviously  be  attended  by  some  evil  "  destructive  of  our 
nature,  or  exceeding  the  ordinary  patience  and  constancy  of 

1  II.  3.  23.  2  II.  3.  24.  3  II.  4.  4  II.  5.  6  II.  6. 


330  SAMUEL  PUFENDORF 

human  minds,"  unless,  however,  the  case  in  question  be  expressly 
included  in  those  laws.  But  apart  from  exceptional  cases,  the 
rule  is  that  no  one  may  arrogate  to  himself,  on  the  ground  of 
necessity,  the  liberty  to  violate  a  positive  law.  Similarly,  a 
command  of  natural  law  may  be  disobeyed  when  one,  through 
no  neglect  or  default  of  his  own,  is  placed  under  extreme  necessity  ; 
but  not  so  when  the  command  is  so  absolute  as  to  require  its 
fulfilment  even  at  the  price  of  laying  down  one's  life.  In  no  case 
whatever  can  necessity  make  it  permissible  to  offend  against 
God.1 

Next,  Pufendorf  sets  forth  various  common  rights  and  duties 
regarding  both  municipal  relationships  and  international.  All 
men  are  to  be  accounted  by  nature  equal.2  If  any  injury  is  done, 
due  reparation  must  be  made.3  The  troops  of  another  State 
have  the  right  of  free  passage  over  our  territory  ;  but  if  they  are 
in  large  numbers,  a  guarantee  (e.g.  hostages)  may  be  demanded 
by  us  to  insure  the  safety  of  our  subjects  and  their  property. 
In  the  absence  of  special  compacts  or  concessions,  natural  law 
does  not  give  such  right  if  the  troops  are  proceeding  against  our 
friendly  neighbour  ;  hence  it  is  our  duty  to  prevent  their  passage 
if  we  have  power  enough  to  do  so,  unless  our  opposition  would 
bring  on  us  a  disastrous  war.  In  other  words,  necessity  would 
excuse  the  non-performance  of  our  duty.4  Free  access  to  our 
shores  is  to  be  allowed  to  strangers  having  no  hostile  intention 
and  suffering  no  contagious  diseases.5  The  admission  of  aliens 
and  the  kind  reception  of  travellers,  if  their  purpose  be  honest, 
are  duties  of  natural  law.6  The  settlement  of  exiles  ought  to  be 
permitted  if  they  submit  to  our  government  and  conduct  them- 
selves peacefully.7  Further,  foreign  citizens  have  the  right  of 
intermarriage  (ius  connubiif  and  of  commercial  intercourse  (ins 
commercii)  with  us,  subject  to  such  restrictions  as  State  policy  or 
economic  reasons  may  demand.9 

After  examining  the  nature  of  promises  and  pacts,  the  consent 
required  therein,  then*  matter  and  conditions,  and  the  doctrine 
of  agency,10  the  author  inquires  into  the  obligations  attending 
speech  and  its  expression,11  and  discusses  various  moot  problems 
arising  therefrom,  e.g.  when  untruths  are  not  to  be  considered 
perfidious  or  criminal,12  how  far  part  of  the  truth  may  be  legiti- 

1  H.  6.  2.  a  in.  2.  3  HI.  1. 

4  m.  3.  6.  s  IIL  3.  8.  6  III.  3.  9. 

7  III.  3. 10.  s  m.  3. 13.  9  III.  3  11. 

10  IEL  5— HL  7.  9.  "  IV.  1.  12  IV.  1.  9. 


SAMUEL  PUFENDORF  331 

mately  concealed,1  to  what  extent  simulation  and  mental  reserva- 
tions are  permissible,2  in  what  circumstances  governors  of  States 
may  issue  false  reports,3  whether  it  is  lawful  to  send  false  com- 
munications to  an  enemy,4  whether  a  guilty  person  may  deny 
the  charge,  and  what  his  advocate  may  do  in  such  a  case.6  Then 
he  deals  with  the  legal  significance  of  the  oath,  its  interpretation 
and  per  jury,6  with  the  origin  and  object  of  property  or  dominion.7 
As  to  ownership  of  the  sea,  Pufendorf  observes  that  many  of  the 
writers  engaged  in  the  controversy  were  animated  more  by  affec- 
tion for  their  country  than  by  regard  for  truth.  The  main  ocean 
cannot  be  under  anyone's  dominion  ;  its  illimitability  makes  it 
impossible  to  defend  its  possession  effectively,  and,  moreover, 
the  use  of  it  is  inexhaustible  and  therefore  sufficient  for  all.  The 
world  was  given  by  God  to  the  human  race  in  general,  and  all 
men  have  by  nature  equal  rights.  Dominion,  however,  may  be 
exercised  over  parts  of  the  sea,  e.g.  territorial  waters,  and  other 
particular  regions  when  acquired  in  virtue  of  treaties  with  neigh- 
bouring and  other  States  concerned.8  Thus  freedom  of  naviga- 
tion is  the  right  of  all,  for  no  one  people  may  obtain  such  a  power 
over  the  seas  as  will  justify  the  exclusion  of  all  others  from  the 
same  benefit.  Ordinary  rights  may  be  modified  by  compacts,  but 
not  if  prejudicial  to  a  third  party.9 

These  questions  lead  to  the  exposition  of  such  matters  as  modes 
of  acquiring  ownership,  occupation,  rights  over  another's  property, 
transference  of  property,  testaments,  intestate  succession,  usu- 
caption,  prescription,  obligations  arising  from  the  right  of  pro- 
perty.10 Then  follows  an  analysis  of  the  conception  of  price11 
and  of  the  nature  of  commercial  transactions.12  As  regards 
international  relationships,  Pufendorf  observes  that  there  is  an 
implied  agreement  in  wars,  at  least  after  all  terms  of  peace  have 
been  rejected,  that  whichever  party  conquers  shall  have  the 
right  to  impose  laws  on  the  vanquished ;  so  that  a  defeated 
belligerent  cannot  urge  as  a  ground  for  the  non-fulfilment  of  a 
treaty  that  he  was  forced  to  enter  into  it  through  fear— for  he 
who  takes  the  field  when  the  dispute  in  question  may  be  decided 
otherwise  is  deemed  to  commit  its  decision  to  the  sword.  There 
must  be  no  subtle  evasions  in  the  interpretation  of  contracts. 
Tn  a  state  of  nature  controversies  cannot  be  settled  by  judges,  but 

1  IV.  1. 11.                    2  IV.  1. 12-14.  3  IV.  1. 1. 

*  IV.  1. 191.  6  IV.  1. 20-2.  IV.  2. 

7  IV.  4-5.                          8  IV.  5.  5-9.  IV.  5.  10 

10  IV.  6-13.  '  ll  V.  1.  12  V.2. 


332  SAMUEL   PUFENDORF 

by  submission  to  mediators  and  arbitrators.1  The  sixth  book 
deals  with  the  institutions  of  marriage,  paternal  power,  and 
master's  authority.2 

Finally,  the  author  discusses  the  establishment  of  civil  societies 
and  sovereigns,  and  the  rights  and  incidents  of  sovereignty. 
Men  are  induced  to  set  up  organized  communities  in  order  to  pro- 
tect themselves  from  injury.3  To  secure  lasting  peace  more  is 
needed  than  the  law  of  nature  and  the  temporary  intervention 
of  conciliators  and  arbitrators.  Besides,  in  a  state  of  nature  the 
arbitrator  is  not  vested  with  authority  to  compel  the  contending 
parties  to  accept  his  judgment,  and  so  to  prevent  the  adoption 
of  forcible  measures.4  The  greatest  part  of  mankind  have  regard 
to  the  immediate  present  rather  than  to  the  future  ;  they  act  not 
with  rational  motives  but  by  wild  impulse.5  Thus  by  a  union  of 
wills  and  strength,  produced  by  intervening  covenants,  a  civil 
State  and  a  sovereign  authority  are  erected.  In  the  conception  of 
a  civil  State,  Pufendorf  emphasizes  the  corporate  existence,  the 
persona  as  the  essential.  In  a  monarchy,  the  will  of  the  prince 
is  the  will  of  the  State  ;  under  other  forms  of  regularized  govern- 
ment, the  will  of  the  State  is  represented  by  that  oi  the  majority 
of  the  subjects  ;  but  both  cases  may  admit  of  limitations.6  The 
author  then  inquires  whether  the  majesty  of  princes  is  immediately 
derived  from  God  ;7  he  points  out  that  civil  authority  cannot  be 
simply  the  effect  of  war  as  it  must  exist  before  war  is  made,8  and 
discusses  the  forms  of  government,9  the  ways  of  acquiring 
sovereignty  (especially  monarchical),10  the  parts  of  sovereignty 
and  their  natural  connection  (e.g.  the  legislative  power,  the 
judicial  right  of  taxation,  power  to  make  war  and  peace  and  to 
enter  into  treaties  and  alliances,  etc.),11  the  duty  of  the  sover- 
reign,12  his  power  to  direct  the  actions  of  his  subjects  and  to  dispose 
of  their  persons  and  property  in  behalf  of  the  commonwealth  and 
in  criminal  cases,13  to  determine  their  rank,14  and  his  power  over 
the  kingdom  as  the  "public  patrimony."15  His  authority  is 
however,  subject  to  various  restrictions,  e.g.  he  cannot  alienate  the 
kingdom  or  part  of  it  or  the  sources  of  public  revenue,  he  cannot 
make  it  a  fief,  or  mortgage  it  without  the  consent  of  his  people.16 

4.  The  Law  of  War. — This  part  of  Pufendorf 's  subject  has  by 
no  means  as  great  value  as  the  corresponding  portions  of  Gentilis 

1  V.  2.  13.  a  vi.  j.3,                3  VH.  1.  7.  *  VII.  1.  9. 

5  VII.  1.  11.  e  VII.  2.                 t  vn.  3.  3.  8  VII.  3.  5. 

9  VII.  5.  10  vil.  7.  ll  VII.  4.  .      12  VII.  9. 

13  VIII.  1-3.  "  VIII.  4.  16  VIII.  5.  16  Ibid. 


SAMUEL   PUFENDOEF  333 

or  Grotius,  the  latter  of  whom  he  follows  very  frequently.  Many 
important  and  interesting  questions  are  passed  over,  and  some 
others  are  presented  in  a  somewhat  superficial  analysis.  Never- 
theless, taking  all  failings  into  account — his  too  great  readiness 
to  draw  conclusions,  insufficiently  considered,  from  his  hypo- 
thetical principles,  his  almost  exclusive  concern  with  abstract 
relationships  and  disregard  of  actual  inevitable  phenomena — it 
must  be  admitted  that  his  exposition  occupies  no  mean  place  in 
the  history  of  the  law  of  war. 

Starting  from  a  point  of  view  different  from  that  of  Gentilis 
and  Grotius,  Pufendorf 's  definitions  of  peace  and  war  are  wider, 
less  concise,  and  less  definite  than  those  of  his  great  predecessors. 
Peace  is  that  state  in  which  men  live  quietly  together,  untroubled 
by  violence,  and  voluntarily  discharge  their  obligations.1  War  is 
the  state  of  men  engaged  in  offering  and  repelling  injuries,  or 
endeavouring  forcibly  to  recover  what  is  their  due.2  Peace  is  the 
normal  state  of  mankind  ;  the  law  of  nature  was  given  to  men 
principally  to  establish  and  preserve  peace.  Only  by  an  extra- 
ordinary indulgence  does  it  permit  them  to  make  war,  i.e.  when 
natural  law  itself  is  wilfully  violated,  as  by  unjust  aggression 
(defensive  war)  or  refusal  to  restore  what  is  naturally  due  to 
them  (offensive  war).3  In  any  case  peace  is  necessarily  the  price 
and  reward  of  war.4  But  such  alleged  causes  of  war  must  be 
manifest,  and  free  from  doubt  and  uncertainty.  Pacific  settle- 
ment must  be  tried  first  by  negotiation,  or  arbitration,  or  by  lot.5 
Following  Grotius,  he  mentions  certain  unjust  causes  of  war,  of 
which  some  are  obviously  unlawful  (e.g.  avarice,  ambition,  desire 
to  extend  dominion),  and  others  have  a  mere  colour  of  lawfulness 
(e.g.  fear  due  to  the  increasing  might  of  a  neighbouring  State). 
Mere  suspicion  is  not  enough  ;  there  must  be  certainty  that 
designs  are  formed  against  us.  To  consider  utility  a  ground  for 
war  is  "impudens."  The  inhuman  practices  of  barbarians 
(e.g.  cannibalism,  immolation)  are  not  sufficient  cause,  unless 
directed  against  our  subjects  who  had  done  them  no  injury.6 

1  I.  1.  8 :  "  Pax  .  .  .  est  status  ille,  quo  homines  inter  se  quiete,  et  citra 
iniuras  violentas  agunt,  et  quae  invicem  debent,  velut  ex  obligatione  et  ultro 
praestant." 

2  Ibid.  :  "  Bellum  ...  est  status  iniurias  violentas  mutuo  inferentium  et 
propulsantium,  aut  quae  sibi  debentur  vi  extorquere  nitentium." 

3  VIII.  6.  3. 

4  VIII.  6.  2 :  "  Ita  tamen  natura  permittit  bellum,  ut  id  gerens  pro  fine 
sibi  constituere  pacem  debeat." 

6  VIII.  6.  4.  6  VIII,  6,  5. 


334  SAMUEL   PUFENDOBF 

It  is  legitimate  to  use  stratagem  and  fraud  against  the  enemy, 
provided  there  be  no  treachery,  or  violation  of  a  compact  or  good 
faith  thereby.1  But  it  is  difficult  to  settle  the  limits  of  hostile 
conduct ;  for  every  war  appears  to  involve  an  understanding  of 
this  kind  :  "  Try  your  strength  and  we  will  try  ours."2  Retribu- 
tion cannot  (as  in  civil  tribunals)  always  be  measured  by  the 
offence.  But  the  law  of  humanity  not  only  prohibits  the  infliction 
of  unnecessary  excessive  injury  on  the  enemy,  but  demands 
generosity  on  the  part  of  the  victor  ;3  hence  natural  law  requires 
the  observance  of  moderation,  "  temperamenta  "  (as  Grotius  had 
insisted). 

In  a  state  of  nature  all  men  have  the  right  to  conduct  hostilities, 
but  when  States  are  constituted  the  right  is  transferred  to  the 
sovereign  authority.4  War  may  be  divided  into  solemn  (or 
formal)  and  less  solemn.5  The  first  is  formally  proclaimed, 
commenced,  and  directed  by  the  supreme  authority  on  both  sides  ; 
in  which  case  the  belligerents  are  considered  "iusti  hostes." 
The  second  is  not  publicly  declared,  or  is  conducted  by  or  against 
private  subjects  ;  in  the  former  case  it  might  be  such  an  irregular 
proceeding  as  a  depredatory  incursion,  in  the  latter  intestine 
warfare.6  No  community,  civil  or  other,  is  responsible  for  acts 
of  particular  members,  unless  there  be  some  culpable  act  or  omis- 
sion of  its  own,  e.g.  connivance  at  or  acquiescence  in  crimes  com- 
mitted by  its  subjects,  or  refusal  to  surrender  fugitive  offenders.7 
A  foreign  State  refusing  "  to  administer  justice  "  is  liable  to 
reprisals  at  the  hands  of  the  injured  party,  who  may  seize  the 
persons  and  property  of  the  former's  subjects.8  War  may  be 
justly  made  on  behalf  of  other  peoples,  if  the  auxiliary  State  is 
under  some  tie  or  obligation  to  them  (e.g.  as  allies,  or  confederates), 
and  the  assisted  State  itself  has  just  reasons  for  war.  Otherwise, 
it  is  unlawful  to  aid  one  belligerent  against  another,  as  all  men 
equally  deserve  favour  ;  and  it  is  contrary  to  the  natural  equality 
of  mankind  to  force  oneself  upon  the  world  as  a  judge  and  decider 
of  controversies.  To  take  up  arms  in  defence  of  subjects  of  a 
foreign  State  against  their  sovereign's  oppressions  is  lawful, 

1  VIII.  6.  6. 

2  VIII.  6.  7  :  "  Tenta  quid  ipse  valeas,  ego  itidem  omnia  experiar." 

3  VIII.  6.  7 :  "  Ast  vero  lex  humanitatis  non  id  solum  considerari  vult, 
quid  hostis  citra  iniuriam  possit  pati ,  sed  et  quid  humanum,  adde  et  generosum 
victorem  facere  deccat."  4  VIII.  6.  8. 

5  Of.  Grotius,  I.  3.  4.  1.  «  VIII.  6.  9.  7  VIII.  6.  12. 

8  VIII.  6.  13 :  "  Violentae  executiones  in  civcs  aut  bona  civium  alterius 
reip.,  quac  iustitiam  administrarc  detrectat." 


SAMUEL   PUFENDORF  335 

provided  they  themselves  may  rightfully  oppose  the  tyranny  and 
cruelty  of  their  governors.1  As  to  declaration  of  war,  Pufendorf 
accepts  without  qualification  the  doctrines  laid  down  by  Grotius.2 
With  regard  to  the  treatment  of  the  enemy  and  his  property 
in  general,  Pufendorf  says  it  is  not  possible  to  lay  down  rules  to 
modify  the  law  of  nature  and  impose  clearly  defined  limits  to 
cruelty  and  outrage  ;  it  is  safer  to  leave  these  mattery  to  the 
conscience  of  the  combatants.  Besides,  it  is  understood  between 
them,  "  tacito  quodam  pacto,"  that  they  are  at  liberty  to  increase 
or  abate  the  heat  of  the  war.3  But  there  are  various  mitigations, 
as  Grotius  insisted.4  May  assassins  be  employed  against  the 
enemy  ?  Yes,  in  the  case  of  rebels,  pirates,  highwaymen. 
Good  faith  is  to  be  maintained  between  the  belligerents ;  but  it 
does  not  of  necessity  follow  that  the  adversary's  subjects  may 
not  be  induced  to  desert.5  In  a  legitimate  solemn  war  natural 
law  confers  on  a  belligerent  the  right  to  take  possession  of  such 
property  of  the  enemy  as  will  amount  to  the  original  claim, 
together  with  an  indemnity  to  cover  damages  and  expenditure, 
and  to  exact  other  securities  from  the  enemy.  Moreover,  accord- 
ing to  universal  practice  a  combatant  becomes  the  absolute 
proprietor  of  everything  taken  from  the  enemy,  even  though 
it  exceeds  the  original  claim.  But  to  give  the  victor  a  right  of 
property,  there  must  be  a  pacification  and  agreement ;  otherwise 
the  right  is  deemed  to  continue  in  the  old  owner,  who  may  justly 
regain  it  when  he  is  strong  enough  to  do  so.6  The  booty  goes  to 
the  sovereign,  who  may  share  it  amongst  his  soldiers,  after 
restoring  what  was  due  to  any  one  on  whose  behalf  the  war  was 
begun.  Mercenary  soldiers  have  no  right  to  anything  but  their 
pay  ;  and  private  adventurers  are  not  entitled  to  anything  other 
than  what  the  sovereign  decides  to  allow  them.7  Tilings  incor- 
poreal can  only  be  acquired  along  with  the  subjects — persons 
or  things — they  inhere  in.  The  capture  of  a  person  having  rights 
over  others  does  not,  without  their  consent,  effect  a  transference 
of  those  rights  to  the  captor.  Thus  if  a  king  is  taken  prisoner, 
the  captor  does  not  thereby  acquire  his  kingdom.  Similarly, 
taking  a  husband  gives  no  right  over  his  wife  or  children.  A 
prisoner's  rights  in  things  are  not  acquired  unless  those  things  are 
taken  along  with  him  ;8  nor  are  his  actions  and  credits  unless  he 

1  VIII.  6.  14.  2  VIII.  6.  15.     Cf.  De  iure  belli  et  pacts,  III.  3. 

3  VIII.  6.  16.  4  De  iure  belli  et  pacis,  III.  4.  5.  5  VIII.  6.  18. 

6  VIII.  6. 20.  7  VEIL  6. 21.  8  VIII.  6. 22. 


335  SAMUEL   PUFENDOBF 

consent  to  make  them  over — though  such  consent  may  be  ex- 
torted by  threats.1  Dominion  over  the  vanquished  is  obtained 
if  they  promise  expressly  or  tacitly  to  acknowledge  their  con- 
queror as  their  lord,  and  he  for  his  part  undertakes  not  to  treat 
them  any  longer  as  enemies.2  Finally,  prisoners  of  war  recover 
their  former  status  if,  not  being  under  any  obligation  of  faith  to 
the  adversary,  they  escape  and  return  to  their  country.  If 
during  the  war  captured  things,  whether  movables  or  immovables, 
are  retaken,  they  are  to  be  restored  to  their  former  owners.3 
And  a  whole  nation  regains  its  liberty  when  it  shakes  off  the 
enemy's  yoke,  either  by  its  own  strength  or  by  the  aid  of  allies 
or  friends.  But  should  a  third  State  by  warlike  proceedings 
made  in  its  own  name  and  for  its  own  advantage  wrest  a  sub- 
jugated and  enslaved  nation  from  its  adversary,  dominion  over 
that  nation  is  transferred  to  the  new  victor.4 

The  hostilities  of  the  belligerents  may  be  "  confined,"  or  sus- 
pended, or  entirely  terminated  by  means  of  compacts  and 
conventions.5  But  it  is  doubtful  whether  validity  can  be  claimed 
for  truces  and  armistices,  or  their  violation  regarded  as  an  infringe- 
ment of  natural  law.  For  the  proper  use  of  good  faith  is  to 
advance  peace  ;  and  such  engagements  may  tend,  on  the  contrary, 
to  protract  the  war.  Though  active  hostile  proceedings  are  in 
abeyance  the  state  of  hostility  continues,  and  in  itself  gives  a 
combatant  unlimited  liberty  to  take  all  the  advantages  he  can 
against  his  opponent.6  It  seems  absurd  to  employ  faith  without 
thoughts  of  restoring  or  preserving  peace  thereby ;  it  is  contra- 
dictory to  a  belligerent's  actions  to  make  a  protestation  not  to 
use  the  liberty  of  an  enemy  whilst  a  state  of  war  subsists.  Thus, 
these  compacts  are  to  be  measured  simply  by  the  use  and  ad- 
vantage derived  from  them,  "eadem  utilitate  aestimari."  A 
belligerent  is  not  bound  to  make  use  of  the  utmost  rigours  per- 
mitted by  the  law  of  war  ;  it  is  generous  and  noble  to  spare  an 
enemy  when  he  may  be  quite  legitimately  dispatched.  But  if  we 
do  not  obtain  our  rights  by  pacific  measures,  and  war  becomes 
necessary,  then  the  shortest  way  to  attain  that  end  is  the  one  most 
conformable  to  nature.  Hence  such  conventions  as  tend  only  to 
moderate  and  qualify  hostilities  and  prolong  warlike  relationships 

1  VIII.  6. 23.  a  VIII.  6.  24.     Cf.  Grotius,  III.  8. 

3  VIII.  6.  25.  *  VIII.  6.  26.  5  VIII.  7.  1. 

6  VIII.  7.  2 :  "  Nam  hostilis  status  utique  in  se  dat  lioentiam  nocendi 
altcri  in  infinitum." 


SAMUEL   PUFENDORF  337 

are  repugnant  to  nature  -1  In  the  more  civilized  parts  of  the  world, 
however,  custom  has  established  the  use  of  traces  and  armistices 
for  various  purposes.  A  trace  being  temporary  in  effect  leaves 
undecided  the  dispute  wln'ch  caused  the  war.2  Therefore  when 
the  engagement  expires,  there  is  no  need  to  make  a  new  proclama- 
tion of  war  ;  nevertheless,  if  not  obligatory,  it  is  at  least  honour- 
able to  do  so  when  the  truce  was  of  long  date  and  has  entirely 
put  a  stop  to  the  progress,  and  transformed  the  complexion  of 
war,  or  when  there  is  an  express  stipulation  that  conferences  be 
held  to  determine  the  difference  in  question.3  Of  course,  if  one 
side  commit  a  breach,  it  is  by  no  means  incumbent  on  the  other 
to  make  any  declaration  before  taking  up  arms  again.4  Truces 
may  be  established  either  by  explicit  agreement,  or  impliedly  by 
conduct — though  merely  to  forbear  from  hostilities  for  a  short 
time  is  not  necessarily  giving  a  truce.5  What  liberties  does  a 
truce  allow  ?  Acts  purely  of  a  defensive  character  are  lawful, 
even  though  the  trace  was  obtained  for  another  purpose.  For 
example,  if  a  cessation  of  war  be  agreed  upon  in  order  to  bury 
the  slain,  it  is  not  on  that  account  unlawful  to  retreat  to  a  more 
secure  position,  or  to  repair  or  raise  a  fortification  ;  and  so  also 
if  a  besieged  town  request  a  truce  for  the  purpose  of  deferring  the 
assault,  it  may  also  receive  fresh  supplies  of  men  and  provisions.* 
On  the  expiration  of  a  trace  subjects  of  a  belligerent  found  on 
enemy  territory  may  be  made  prisoners.7 

In  this  part  of  the  subject  Pufendorf  follows  Grotius  to  a  very- 
large  extent ;  indeed,  he  very  frequently  mentions  a  heading  and 
merely  refers  to  his  predecessor  for  argument  and  solution .  When 
he  differs,  however,  his  opinions  are  generally  less  progressive 
than  those  of  the  great  Dutch  jurist,  on  account  of  his  too  stringent 
adhesion  to  a  priori  assumptions  attributed  to  the  exigence  of 
natural  law,  and  owing  to  his  scanty  consideration  of  the  actual 
development  of  international  relationships.  In  his  advocacy  of 
the  lawful  severities  of  war,  as  against  the  numerous  relaxations 
proposed  by  Grotius  and  others,  he  supports  his  views — apart 
from  insistent  appeals  to  elementary  principles  which  he  considers 
incontrovertible,  but  which  he  sometimes  applies  too  mechanically 
— almost  entirely  by  the  citation  of  ancient  principles. 

1  vTEI.  7.  2  :  "  Adeoque  ubi  per  pacta  ilia,  vim  hostilem  temperantia  non 
nisi  bellum  alatur,  naturae  eadem  repugnare  manifestum  est." 

2  VTII.  7. 5.  3  VIII.  7.  6.  4  VIII.  7. 12.  5  VIII.  7.  7. 
6  VIII.  7.  10.              7  VIII.  7.  11.     Cf.  Grotius,  III.  21.  9. 


338  SAMUEL   PUFENDORF 

5.  Treaties  of  Peace,  Alliances,  and  Other  Conventions. — Are 
treaties  of  peace  invalidated  through  fear  ?  Grotius  replies  in 
the  negative,1  on  the  ground  that  according  to  the  common 
practices  of  nations  such  compacts  are  not  held  to  be  vitiated ; 
if  they  were,  it  would  be  impossible  to  put  an  end  to  wars,  or  even 
to  moderate  their  severity.  Pufendorf,  however,  contends  that 
what  is  got  through  extortion  and  the  ravages  of  an  unjust  war 
cannot  conscientiously  be  retained  ;  hence  it  is  allowable  "  to 
plead  an  exception  of  fear  "  against  an  unjust  conqueror,  who 
forced  his  adversary  to  consent  to  rigorous  demands  and  accept 
a  hard  peace.  But  it  is  otherwise  if  the  combatants  agreed  to 
let  the  sword  alone  settle  their  difference.2  Is  a  treaty  of  peace 
made  by  a  sovereign  with  his  rebel  subjects  binding  ?3  Pufendorf 
maintains  that  to  enter  into  a  compact  with  them  implies  ipso 
facto  that  their  offence  is  pardoned  ;  and  that  they  may  well 
claim  that  their  promised  obedience  is  conditional  on  the  sove- 
reign's observance  of  the  engagement.4  Such  a  treaty  may  be  of 
the  nature  of  a  charter  or  a  fundamental  law  of  the  constitution. 
Further,  private  property  may  be  ceded  on  pacification,  in  virtue 
of  the  prince's  right  of  "dominium  eminens,"  which  may  be 
exercised  under  stress  of  necessity  and  for  the  public  interest. 
But  the  State  is  bound  to  make  good  as  soon  as  it  can  such  losses 
of  its  citizens.  As  to  hostages  given  for  insuring  the  ratification 
of  peace,  Pufendorf  accepts  what  Grotius  says,5  and  emphasizes 
that  if  the  hostage  is  the  prince's  heir  and  successor  another  is  to 
be  substituted  for  him  on  that  prince's  demise.6 

With  regard  to  treaties  and  conventions  ("  foedera  ")  entered 
into  apart  from  war,  they  may  be  divided  into  two  classes  accord- 
ing to  their  subject-matter ;  firstly,  those  asserting  rights  and 
obligations  which  were  already  conferred  or  imposed  by  natural 
law ;  secondly,  those  superadding  certain  special  provisions  to 
the  general  duties  of  natural  law,  or  modifying  and  restricting 
those  general  duties  to  specifically  defined  circumstances.  The 
first  are  treaties  of  friendship,  providing  merely  for  the  exercise 
of  mutual  civility  and  humanity.  But  now  that  nations  are 
more  civilized  and  "  polished  in  their  manners  "  than  the  ancient 
peoples  who  made  pacts  of  this  kind,  such  treaties  are  really 
redundant ;  for  it  is  a  disgrace  to  human  nature  that  people 

1  De  iure  belli  et  pads,  II.  17.  19  ;  III.  19.  11.  3  VIII.  8.  1. 

3  Cf.  Grotius,  III.  19.  6.  *  VIII.  8.  2. 

B  Op.  cit..  III.  20,  52,  etc.  «  VIII.  8.  «. 


SAMUEL   PUFENDORF  339 

outside  barbarism  should  establish  conventions  whose  purport 
does  not  go  beyond  what  is  incontestably  demanded  by  natural 
law.1  The  second  class  comprises  alliances  which  may  be,  from 
one  point  of  view,  either  equal  or  unequal,  and,  from  another, 
real  or  personal.  A  personal  alliance  is  one  made  with  a  sovereign 
in  his  personal  capacity,  and  hence  expires  with  him.  A  real 
alliance  is  one  made  irrespectively  of  the  life  of  the  contracting 
sovereign,  and  therefore  has  permanent  effect ;  e.g.  when  it  is 
expressly  mentioned  that  it  is  to  be  perpetual,  or  it  is  made  for 
the  prince  and  his  successors,  or  when  its  duration  is  limited  to  a 
certain  period.  In  case  of  doubt,  a  favourable  compact  (e.g.  for 
the  advancement  of  commerce)  may  be  construed  as  real,  an 
onerous  one  as  personal.  In  these  questions  Pufendorf  follows 
the  Grotian  doctrines,  but  he  considers  them  inadequate,  as  it 
remains  to  be  determined  when  a  prince's  successors  are  bound 
by  the  treaties  entered  into  in  the  preceding  reign.  In  general 
then,  a  successor  is  bound  (1)  in  the  case  of  a  peace  made  by  his 
predecessor,  (2)  in  agreements  by  which  the  late  sovereign  trans- 
ferred any  right  to  a  third  party,  (3)  when  either  contracting  party 
has  performed  his  part  and  the  other  has  failed  in  his  through 
death,  and  (4)  in  engagements  where  nothing  has  been  done  on 
both  sides,  or  where  the  performances  have  been  equal.  However, 
it  has  become  a  custom  to  renew,  upon  a  new  succession,  the 
treaties  and  alliances — even  though  real — entered  into  by  the 
late  prince.  But  (as  Pufendorf  remarks  in  contradictory  terms) 
a  successor  has  the  right  to  disregard  a  previous  league  which  he 
thinks  is  now  grown  useless  and  unprofitable  to  the  State.2 

If  a  contracting  prince  is  exiled  or  deposed,  is  he  entitled  to 
call  on  the  other  party  for  performance  of  the  compact  ?  Grotius3 
holds  that  he  is  entitled,  if  he  has  been  unjustly  deposed  :  for  he 
has  still  a  right  to  his  kingdom  though  he  has  lost  possession 
of  it.  But  Pufendorf  decides  that  if  the  treaty  expressly  pro- 
vides for  the  protection  of  the  prince's  person  and  dynasty,  he 
has  a  right  to  be  aided  to  recover  his  position.  On  the  other 
hand,  if  the  object  of  the  treaty  is  simply  the  advantage  of  the 
State,  the  case  is  doubtful ;  for  aid  that  had  been  promised  is 
presumed  to  have  been  promised  against  foreign  enemies.  Of 
course,  a  lawful  sovereign  may,  in  virtue  of  such  a  league,  be 

1  VIIL  9.  1-2.  2  VIII.  9.  6-8. 

3  De  iure  betti  et  pacis,  II.  16.  17 :  "  Sane  cum  rege  initum  fnedus  manet, 
etiamsi  rex  idem  aut  successor  regno  a  subditis  sit  pulsus.  lus  eniiu  regni 
penes  ipsum  manet,  utcunque  possessionem  amiserit." 


340  SAMUEL   PUFBNDOEF 

assisted  against  a  usurper.1  Further,  the  author  holds  that  the 
term  "  allies  "  includes  not  only  those  who  were  confederates  at 
the  time  the  league  was  made  but  also  those  subsequently  taken 
into  alliance  ;2  that  when  compacts  of  limited  duration  expire,  a 
tacit  renewal  is  not  necessarily  to  be  supposed  ;3  and  then 
examines  the  nature  of  "  sponsiones,"  and  the  results  of  their 
non-ratification  by  the  sovereign  authority.4 

Next,  the  private  engagements  of  princes  are  considered.  A 
sovereign  may  repudiate  a  disadvantageous  contract  made  with 
an  alien  ;5  but  one  made  with  his  subjects  he  is  bound  in  honour, 
though  not  in  law,  to  observe.  If  he  gives  the  latter  liberty  to 
bring  an  action  against  him  in  his  own  Courts  the  suit  proceeds 
rather  on  natural  equity  than  on  the  civil  law  of  the  State.6  Can 
he  transmit  a  contractual  obligation  to  his  successors  ?  If  the 
kingdom  is  his  "  patrimony,"  his  successor  inherits  his  goods  and 
possessions  together  with  his  liabilities ;  but  if  it  is  held  merely 
as  a  usufructuary  right,  the  successor  is  not  so  bound,7  inasmuch 
as  he  derives  his  right  to  the  throne  not  from  the  preceding 
sovereign,  but  from  the  people.  In  general,  however,  contracts 
of  the  prince  are  binding  on  the  State,  unless  they  are  obviously 
absurd  or  unjust  ;8  in  a  doubtful  case  the  presumption  is  in  favour 
of  the  prince.  The  grants  and  donations  of  a  ruler  cannot  be 
revoked  by  his  successor,  provided  they  were  made  on  good  and 
fair  grounds.9 

Finally,  Pufendorf  discusses  in  what  circumstances  civil  sub- 
jection ceases,  and  what  the  effects  are  of  a  change  of  sovereignty 
and  of  a  dissolution  of  the  commonwealth.  If  a  prince  dies 
without  a  successor,  the  citizens  of  the  country  cease  to  be 
subjects  as  such,  but  remain  united  to  one  another  by  the  original 
bond  and  compact  of  society.10  Subjection  also  terminates  in 
case  of  permanent  settlement  in  foreign  territory.11  Grotius 
thinks  that  such  removal,  if  in  large  companies,  is  unlawful,  in 
that  it  is  inconsistent  with  the  nature  of  civil  society,  but  Pufen- 
dorf sees  no  reason  for  this  contention,  as  civil  society  among  men 
in  general  is  not  destroyed,  though  this  or  that  State  may  thereby 

1  VIII.  9.  9. 

8  VIII.  9.  10 ;  following  mainly  the  conclusions  of  Grotius,  II.  16.  13 ;  but 
the  latter  holds  that  future  allies  are  not  necessarily  included. 

3  VIII.  9.  11.  *  VIII.  9.  12.  6  VEIL  10.  2.  •  VIII.  10.  6. 

'  According  to  the  view  of  Grotius,  II.  14.  10-11. 

8  VIII.  10.  8  :  "  Contractus  regum  obligabunt  civitatem,  qui  non  manifeste 
absurdi  aut  inqui  sunt."  9  Cf.  Grotius,  II.  14.  13. 

10  VIII.  11.  1.  "  VIII.  11.  2.     Cf.  Grotius,  II.  5.  24. 


SAMUEL   PTJFBNDORF  341 

be  dissolved.  The  decline  of  one  State  means  the  generation  of 
another  ;  what  is  lost  in  the  one  is  gained  in  the  other.1  When 
men  began  to  multiply,  nature  caused  them  to  be  divided  into 
civil  communities,  but  never  ordained  that  this  or  that  particular 
commonwealth  should  flourish  and  prosper  for  ever.2  After 
examining  the  causes  of  loss  of  citizenship  (e.g.  banishment, 
surrender  of  subjects  to  an  enemy),3  Pufendorf  points  out  that 
changes  of  government  (monarchy,  oligarchy,  republic)  do  not 
necessarily  affect  the  status  of  the  people,  nor  are  debts  of  the 
State  thereby  extinguished.4  The  acts  of  a  usurper  may  be 
considered  valid,  so  far  as  foreign  relationships  are  concerned, 
for  a  foreign  power  need  not  question  his  title  if  the  transactions 
are  otherwise  regular ;  but  his  unjust  acts  limited  to  the  State 
may,  on  the  expiration  of  his  reign,  be  abrogated  by  a  lawful 
authority.5  A  sovereign  reigns  and  passes  away,  but  the  com- 
monwealth subsists.  It  is  dissolved  only  when  the  people  are 
destroyed,  or  when  the  moral  tie  which  unites  them  is  entirely 
broken.  Grotius  holds  that  if  through  some  desolation  only  a 
few  inhabitants  are  left,  they  are  not  entitled  to  assume  sovereign 
power  or  any  of  the  rights  consequent  thereon  ;6  but  Pufendorf 
contends  that  if  those  few  can  effectively  defend  themselves 
against  foreign  invasion  and  possess  sufficient  resources  for 
"  growing  up  again  "  and  remaining  an  independent  nation, 
then  they  may  legitimately  claim  and  exercise  the  rights  of  the 
former  people.7 

Conclusion. — Pufendorf 's  juristic  writings  enjoyed  immense 
success.  They  were  frequently  reprinted,  and  translated  in 
several  languages ;  extracts,  commentaries,  and  abridgements 
were  issued  in  large  numbers.  For  nearly  a  century  the  majority 
of  continental  writers  on  the  law  of  nature  and  of  nations,  especi- 
ally in  Germany,  acknowledged  the  leadership  of  Pufendorf, 
and  adopted  the  lines  marked  out  by  him.  Among  the  numerous 
adherents  may  be  mentioned  :  in  Germany,  Christian  Thomasius, 
Cocceji,  Wernher,  Wagner,  Griebner,  Koehler,  Heineccius  ;  in 
France,  Barbeyrac,  Richer  d'Aube ;  in  Denmark,  Holberg  ;  in 
Switzerland,  Vicat,  Burmalaqui,  De  Felice  (the  latter  two  being 

1  VIII.  11.  4 :  "  Sed  unius  corruptio  alterius  est  generatio  ;   unius  decre- 
menta  alter!  incremento  cedunt." 

2  Ibid.  :  "  Natura  quippe  civiles  esse  societates  in  genere   humano    lam 
multiplicato  voluit ;   sed  ut  haec  vel  ilia  civitas  perpetua    florensque  subsis- 
teret,  nusquam  iussit." 

3  VHI.  11.  6-9.  4  VIII.  12.  1-2.  5  VIII.  12.  3. 
«  De  iure  bdli  et  pads,  II.  9.  4.                                      7  VIII.  12.  8. 


342  SAMUEL   PITFENDOEF 

of  Italian  origin).  As  for  Italy,  Pierantoni  observes  that  the 
theory  of  Pufendorf  had  no  vogue  in  his  country  j1  none  the  less, 
several  later  Italian  writers  produced  works  which  unmistakably 
showed  the  influence  partly  of  Pufendorf  and  partly  of  Wolf. 
On  the  other  hand,  there  were  not  wanting  resolute  dissentients, 
even  in  Germany  ;  among  these  were  the  powerful  adversaries  of 
natural  law,  Samuel  Rachel  and  Wolfgang  Textor. 

Leibnitz's  disparagement  of  Pufendorf's  philosophical  and 
juristic  capacity  was  entirely  unmerited,  and  sprang  rather  from 
personal  hostility  than  from  a  well  balanced  appraisement  of  his 
work.  The  opposition  between  them  first  arose  in  connection 
with  Pufendorf's  well-nigh  revolutionary  pamphlet  on  the  condi- 
tion of  the  German  Empire  ;  the  conservatism,  the  political 
timidity  of  Leibnitz  ill  harmonized  with  the  progressive  tendency, 
the  aggressive  spirit  of  Pufendorf  ;  and  the  breach  between  them 
was  aggravated  by  the  triumph  of  the  latter  in  the  stirring  con- 
troversy. The  laconic  dictum  of  Leibnitz  :  "  Vir  parum  iuris- 
consultus  et  minime  philosophus,"2  recalls  Ben  Jonson's  valua- 
tion of  Shakespeare's  classical  scholarship,  and  comes  from  an 
overweening  sense  of  superiority  in  regard  to  a  particular  sphere. 
But  the  aphorism  is  characterized  more  by  concision  than  by 
truth.  To  Leibnitz's  harsh  and  unfair  judgment  is  largely  due 
the  under-estimation  of  Pufendorf  by  many  of  his  successors. 
Locke's  high  opinion,  however,  ma  y  serve  as  a  corrective  of  that 
of  Leibnitz.  Sir  James  Mackintosh,  too,  says  :  "  His  treatise  is 
a  mine  in  which  all  his  successors  must  dig."3  And  in  recent 
times  the  eminent  economic  historian,  Professor  Roscher,  has  ex- 
pressed his  emphatic  dissent  from  the  opinion  of  Leibnitz  ;  indeed, 
he  places  Pufendorf  also  among  the  greatest  political  and  economic 
writers.4 

In  his  various  writings,  especially  in  his  legal  work,  Pufendorf 
does  not  show  the  genius,  the  penetration,  the  profound  erudition 
of  a  Grotius,  nor  the  practical  sagacity,  the  argumentative  skill, 

1  A.  Pierantoni,  Storia  degli  studi  dd  diritto  internazionale  in  Italia  (Modena, 
1869),  p.  49  :  "  L'  intelletto  italiano  non  s'immedesimo  in  tale  epoca  con  detta 
scuola." 

2  Opera,  ed.  Dutens,  vol.  iv.,  pt.  3,  p.  261. 

3  Op.  cit.,  p.  25. 

*  W.  Roscher,  Geschichte  der  National-Oekonomik  in  Deutschland  (Miinchen, 
1874),  p.  305  :  "  Aber  zwischen  diesen  Alternativen  bleibt  noch  eine  dritto 
Moglichkeit  iibrig  :  Pufendorff  war  ein,  durch  Philosophic,  Jurisprudenz  und 
Geschichte  griindlichst  vorgebildeter,  Staatsgelehrter  und  National -okonom 
von  ausserordentlicher  Bedeutung." 


SAMUEL   PUFENDORF  343 

the  power  to  grapple  with  actual  conditions  of  a  Gentilis.  And 
in  originality  also  he  is  certainly  inferior  to  the  first,  and  in  some 
respects  to  the  second.  But  none  the  less  his  treatises  on  juris- 
prudence occupy  a  high  place,  as  they  elaborate  for  the  first  time 
a  systematic  body  of  law,  magnificent  in  its  proportions,  logically 
coherent,  congruous,  scientifically  constructed,  and  based 
throughout  on  fundamental  principles ;  although  the  adoption 
of  these  first  principles  is  to  be  largely  attributed  to  his  study 
of,  and  attempt  at  reconciling,  the  doctrines  of  Hobbes  and 
Grotius.  He  is  at  once  the  best  representative  and  the  head  of 
the  school  of  natural  law.  His  works  display  a  spirit  of  tolerance, 
an  impatience  with  narrow  sectarianism,  a  determination  to 
separate  law  from  theology,  a  desire  to  mete  out  justice  to  all 
mankind,  whether  Christian  or  heathen,  whether  high  or  low  in 
the  scale  of  civilization. 

It  has  bsen  held  that  the  doctrines  of  natural  law  have  at  times 
had  a  retarding  influence  on  the  development  of  international 
law.  But  this  was  not  due  to  any  defect  inherent  in  the  former, 
but  rather  to  the  analogical  and  syllogistic  inconsequences  of  over- 
enthusiastic  devotees  of  natural  law,  to  the  careless  vagaries  of 
special  pleaders  advocating  or  opposing  this  or  that  particular 
provision  or  institution.  The  law  of  the  present  world — 
whether  municipal  or  international  —  no  doubt  possesses 
above  all  a  positive  character.  The  modern  age  is  in- 
ordinately given  to  glorifying  the  visible,  the  tangible.  But 
there  are  signs  of  a  spiritual  awakening  ;  there  is  now  manifested 
in  many  quarters  a  desire  to  go  beyond  the  veil  of  phenomena 
and  to  search  for  the  ultimate  principles  of  life,  of  thought,  of 
human  relationships.  Science  is  now  becoming  strikingly 
transcendentalized ;  the  study  of  comparative  jurisprudence,  so 
extensively  grown  of  late,  shows  that  men  have  become  keenly 
anxious  to  learn  not  only  how  legal  problems  have  been  or  are 
being  solved  in  different  places,  but  also  how  law  has  originated, 
and  what  are  its  essential  foundations  universally  recognized  as 
such.  As  in  science  metaphysical  entities  are  being  more  and 
more  imported,  so  in  the  sphere  of  law  will  those  principles  of 
natural  law  come  to  be  more  and  more  emphasized,  through  the 
ineradicable  promptings  of  the  intuitive  consciousness  of  men 
and  of  States.  Does  not  the  recent  Hague  Convention — con- 
sidered by  many  the  very  incarnation  of  the  positive  method  in 
international  law — speak  of  conscience  and  humanity  ?  And 


344  SAMUEL   PUFENDOBF 

does  it  not  thereby  affirm  the  inadequacy  of  that  positive  method, 
and  make  a  covert  appeal  to  natural  law,  which  is  in  its  simplest 
form  an  expression  of  what  is  irrespectively  discerned  in  human 
conscience  ?  There  are  conceptions  which  retain  a  perennial 
potency  in  spite  of  their  being  openly  disavowed  at  one  time  or 
another. 


VICO  (1668-1744) 

THE  golden  age  of  Italian  literature  may  be  said  to  have  passed 
away  when,  by  the  treaty  of  Castel  Cambresis,  in  1559,  the 
hegemony  of  the  Austrian  House  of  Spain  was  established  over 
the  peninsula,  and  the  era  of  foreign  domination  had  begun. 
The  decrees  of  the  Council  of  Trent  completed  the  work  of  the 
counter-reformation,  and  before  1565  the  old  toleration  of  literary 
liberty  had  given  place  to  a  general  policy  of  repression  and 
obscurantism  sufficient  to  chill  all  intellectual  activity.  Hence- 
forth the  main  currents  of  European  life  were  to  be  no  longer 
essentially  literary  or  artistic.  The  dynastic  interests  of  France 
and  Spain  had  become  centres  to  which  all  that  was  best  steadily 
gravitated. 

The  boundary  mark  between  medieval  and  modern  Italy  lies 
somewhere  about  the  middle  of  the  eighteenth  century.  Metas- 
tasio  and  Goldoni,  Alfieri  and  Monti,  show  us  the  old  art  in 
process  of  transformation  into  the  new.  But  they  are  not  repre- 
sentatively Italian.  Metastasio's  tragedy  is  inspired  by  Cor- 
neille  ;  the  comedy  of  Goldoni  by  Moliere.  Their  world  is  an 
artistic  mistake.  False  heroics  and  degenerate  pastorals,  sensual 
music  and  tinsel  ornamentation,  betray  their  unworthiness  to 
represent  their  predecessors .  In  the  domain  of  history  and  philo- 
sophy, however,  things  wore  a  new  and  fruitful  aspect.  The 
wonderful  erudition  of  Muratori  had  helped  to  throw  light  upon 
the  darkest  recesses  of  the  past,  and  before  the  eighteenth  century 
had  opened  Naples  produced  her  most  illustrious  citizen,  Giam- 
battista  Vico,  whose  profound  originality  of  mind  was  enough 
to  place  him  in  the  forefront  of  European  learning. 

Although  it  may  be  said  that  the  story  of  a  man  of  letters  is 
best  studied  in  his  works,  it  is  generally  necessary,  in  order  to 
form  some  clear  notion  of  his  relative  value  and  of  the  manner 
in  which  his  thought  was  moulded,  to  inquire  into  the  conditions 
in  which  he  lived  and  into  the  influences  which  produced  him. 

345 


346  vico 

Although  Giambattista  Vico  was  essentially  a  modern  in  spirit, 
he  was  born  in  an  almost  medieval  atmosphere.  Naples  in  1668, 
the  year  of  his  birth,  was  under  the  domination  of  the  House  of 
Aragon.  The  Spanish  viceroys,  who,  since  the  time  of  Ferdinand 
the  Catholic,  had  wielded  almost  supreme  power  in  the  province, 
were  careless  of  the  conduct  of  affairs,  and  usually  corrupt.  Far 
from  Madrid,  and  holding  in  their  own  control  the  means  of  com- 
munication with  the  central  Government,  they  hindered  com- 
merce by  vexatious  restrictions,  and  practised  nepotism  in  its 
most  ruinous  forms.  Provided  they  extorted  a  sufficient  tribute 
and  sent  it  regularly  to  Spain,  the  only  check  they  had  to  fear 
was  the  anger  of  the  Neapolitan  populace.  Brigandage  had,  in 
the  seventeenth  century,  assumed  unprecedented  proportions  : 
the  bandits  were  protected  by  the  nobles  and,  in  time  of  sedition, 
boldly  entered  Naples  to  support  one  or  other  of  the  rival  factions. 
Assassins  claimed  sanctuary  in  almost  every  church,  and  if  they 
were  of  sufficient  social  importance  were  graciously  protected 
by  the  Viceroy,  who  would  intervene  in  open  court  on  their 
behalf.  False  comers  abounded,  some  of  them  renegade  monks, 
who,  in  one  instance,  when  condemned  to  the  hulks,  placidly 
continued  their  trade  with  the  connivance  of  their  gaolers.  One 
of  the  Viceroys,  Benavides,  himself  emulated  the  enterprise  of 
his  subjects  in  producing  false  coin.  The  professional  thieves 
in  Naples  were  reckoned  at  30,000,  or  three  among  every  sixty 
of  the  inhabitants.  Despite  the  lawlessness  that  prevailed,  the 
Church  in  Naples  had  attained  immense  power  over  the  people. 
She  was  by  far  the  greatest  landowner,  and  her  dignitaries  were 
able  to  carry  out  unfettered  their  schemes  for  their  own  aggran- 
dizement or  for  that  of  their  community.  There  were  16,000 
ecclesiastics  in  the  city  of  Naples,  and  the  religious  foundations 
were  entitled  to  a  third  of  every  intestacy ;  the  miracle  of  the 
liquefaction  of  the  blood  of  San  Gennaro — "miracolo  da  fare 
ogni  Turco  Cristiano  " — was  merely  one  of  the  host  of  similar 
prodigies  in  which  the  populace  had  an  unswerving  belief.  In 
1707,  when  the  Spaniards  had  fled  before  the  arrival  of  the 
victorious  Austrians  in  Naples,  it  was  by  parading  the  image  of 
San  Gennaro  that  the  more  peace-loving  citizens  succeeded  hi 
averting  a  sanguinary  tumult.  The  influence  of  the  Church  was 
all-pervasive,  and  it  was  often  intolerantly  exerted.  When,  hi 
1740,  the  Jews  were  allowed  to  enter  Naples,  the  monks  predicted 
innumerable  evils  to  the  king  and  his  advisers.  Astorino,  a  man 


Vico  347 

remarkable  for  his  intellectual  capacity,  was  accused  of  having 
acquired  his  knowledge  by  witchcraft.  Majello,  who  first  intro- 
duced the  Cartesian  philosophy,  was  long  the  object  of  clerical 
persecution,  and  Giannone,  the  author  of  the  Storia  Civile, 
although  a  friend  of  the  Church,  was,  after  the  publication  of 
his  book,  disowned  by  his  countrymen. 

In  such  surroundings  only  three  careers  were  open  to  the  in- 
telligent or  enterprising  citizen.  The  armies  of  the  Emperor  and 
of  the  King  of  Spain  were  largely  recruited  from  the  Neapolitan 
nobility ;  the  cloister  afforded  a  safe  and  often  pleasant  retreat 
for  the  meaner  classes  who  were  content  to  seek  bodily  and 
mental  peace  within  its  walls  and  in  the  pages  of  Suarez  and 
BeUarmine.  The  law  was  the  last  profession  wherein  the  un- 
warlike  but  more  worldly-minded  Neapolitan  might  find  a  liveli- 
hood. 

Although  the  eleven  systems  of  legislation  which  were  simul- 
taneously in  vigour  in  the  province  of  Naples  must  have  afforded 
a  rich  pasture  for  its  lawyers,  it  may  be  doubted  if  many  of  the 
four  thousand  awocati  who  thronged  the  Courts  can  have  had  a 
substantial  practice  in  a  country  where  commerce  was  stagnant 
and  political  unrest  had  become  endemic.  The  advocate  was, 
however,  often  a  person  of  influence  and  weight.  He  defended 
the  noble  whose  privileges  were  infringed,  and  was  often  liberally 
rewarded  by  his  distinguished  patrons.  The  legal  profession  was, 
moreover,  a  means  of  attaining  to  high  office  and  to  literary 
distinction  ;  many  of  the  lawyers  of  the  time  have  won  a  place 
on  the  roU  of  Italian  literary  celebrities.  Naples  had,  however, 
little  part  in  the  early  development  of  Italian  literature.  The 
communal  life  of  Tuscany  which  had  produced  Petrarch  and 
Boccaccio,  was  rendered  impossible  by  the  maintenance  of  feudal 
institutions,  and  the  character  of  the  people,  blended  out  of 
Greek,  Saracen  and  Norman  blood,  was,  perhaps,  unfavourable 
to  the  formation  of  those  currents  of  thought  which,  hi  other 
places,  have  found  expression  in  distinctive  schools  of  art  and 
science. 

Vice's  Life. — An  autobiography  is,  in  many  respects,  an 
unsatisfactory  source  of  information,  but  it  is  from  the  Vita  di 
G.  B.  Vico,  scritta  da  se  medesimo,  that  we  are  obliged  to  take 
nearly  all  that  is  known  of  its  author's  personality.  This  auto- 
biography was  written,  at  the  request  of  the  Conte  di  Porcia, 
to  form  one  of  a  series  of  literary  lives,  and  selected  as  the  most 


348  vico 

fitted  to  head  the  series,  although  Vico  protested  his  un- 
worthiness  of  the  honour.  In  writing  his  own  life,  Vico  adopted 
a  method  which  renders  it  easy  to  trace  the  development  of  his 
mind  and  throws  light  on  some  of  the  obscurities  of  his  other 
works.  It  affords  a  concrete  example  of  the  historical  method 
which  was  to  so  great  an  extent  the  creation  of  Vico.  His 
letters  furnish  further  information,  and  are  of  assistance  in  the 
attempt  to  sketch  the  main  occurrences  of  his  life. 

Antonio,  the  father  of  our  philosopher,  kept  a  small  bookstall 
in  one  of  the  tortuous  narrow  streets  that  traverse  the  older  parts 
of  Naples.  Though  his  parents  were  poor,  Vico  had  a  kindly 
recollection  of  them.  "  Lasciarono,"  he  says,  "  assai  buona  fama 
di  se."  A  fall  from  a  ladder  caused  "a  fracture  of  the  skull  when 
he  was  seven  years  of  age,  and  he  was  unable  to  work  for  three 
years.  When  he  returned  to  school  his  disposition  was  melan- 
cholic but  earnest,  a  fact  which  he  attributed  to  his' parentage  ; 
but  his  long  illness  and  absence  from  youthful  companions  had, 
no  doubt,  helped  to  strengthen  the  natural  bent  of  his  character. 
Vico  now  set  himself  the  task  of  making  up  for  the  time  lost 
during  his  illness,  and  so  rapid  was  his  progress  that  he  was 
soon  permitted  to  enter  the  senior  class.  His  father  sent 
him  to  the  Jesuits'  school,  where  he  competed  successfully 
with  the  most  brilliant  of  their  pupils.  He  believed  himself 
treated  unjustly  by  his  teachers,  and  left  to  pursue  his  studies 
alone.  Becoming  absorbed  in  his  task,  he  no  longer  observed 
regular  hours,  and  his  mother,  he  tells  us,  more  than  once  found 
him,  at  daybreak,  still  poring  over  his  books.  To  assist  his 
private  studies  Vico  attended  the  lectures  of  a  Jesuit  named  Del 
Balzo,  and  was  by  him  recommended  to  read  Pietro  Ispano  and 
Paolo  Veneto,  two  decadent  scholastic  writers  whose  learned 
incomprehensibilities  proved  so  unpalatable  to  his  clear-thinking 
mind  that  he  abandoned  work  for  eighteen  months.  The 
meeting  of  a  society  known  as  the  "  Accademia  degli  Infuriati  " 
recalled  him  to  himself.  As  he  quaintly  expressed  it,  he  had 
been  like  a  charger  after  training,  put  to  pasture  for  a  time,  and 
he  now  returned  to  the  strife  at  the  sound  of  the  trumpet  of 
learned  discussion.  The  teaching  of  another  Jesuit  inspired  in 
Vico  an  admiration  for  the  greater  scholastic  writers,  and  he 
seems  to  have  sought  acquaintance  with  Greek  philosophy  in 
Scotus  and  similar  writers.  The  fame  of  the  philosophic  Jesuit 
Suarez  of  Granada  induced  Vico  to  make  a  special  study  of  him ; 


vico  349 

but  it  is  a  remarkable  fact  that  not  alone  is  no  trace  of  the  ideas 
expounded  in  the  Tractatus  de  Legflws  to  be  found  in  Vico,  but 
he  does  not  once  refer  to  its  author.  The  desultory  course  which 
Vico  had  hitherto  pursued  in  the  acquisition  of  learning  might, 
perhaps,  have  led  him  far  from  the  fields  in  which  he  was 
destined  to  take  so  brilliant  a  place.  One  day,  visiting  the 
royal  university  he  happened  to  listen  to  a  law  lecture  at  the 
moment  when  the  professor  was  commending  Vulteius  to  his 
hearers  as  the  best  commentator  of  the  Institutes.  Vico,  seized 
with  the  desire  of  studying  this  author,  persuaded  his  father  to 
obtain  a  copy  from  a  well-known  author.  The  latter  saw  the 
lad,  and  was  so  favourably  impressed  that  he  gave  him  the  book 
as  a  present.  It  was  thus,  he  tells  us,  that  he  was  initiated  into 
the  study  of  jurisprudence.  After  he  had  mastered  the  prin- 
ciples of  law,  Vico  at  first  thought  of  practising  at  the  bar,  and 
at  the  age  of  sixteen  he  successfully  pleaded  a  case  in  defence 
of  his  father.  His  health  was,  however,  precarious,  and  he  was, 
by  temperament,  disinclined  to  take  part  in  the  noisy  striving  of 
the  courts.  He  sought  distraction  in  versification,  and  made 
little  or  no  progress  in  the  profession  he  had  chosen. 

A  happy  chance  at  length  afforded  Vico  the  opportunity  of 
meeting  Rocca,  Bishop  of  Ischia.  Struck  by  the  ability  with 
which  he  demonstrated  the  true  method  of  teaching  law,  the 
bishop  procured  him  the  post  of  preceptor  for  his  nephews,  the 
sons  of  the  Marchese  di  Vatolla.  I)uring  the  next  nine  years 
Vico  lived  in  learned  ease  and  retirement  among  congenial  sur- 
roundings, with  the  use  of  an  excellent  library  and  leisure  to 
pursue  his  studies.  He  devoted  himself  equally  to  the  study  of 
law  and  of  literature.  His  interest  in  canon  law  led  him  to 
inquire  into  the  Jansenist  controversy,  and  he  systematically 
read  Dante  and  Virgil,  Petrarch  and  Horace,  noting  the  compara- 
tive merits  of  their  languages  and  perusing  each  three  times.  It 
was  during  this  period  that  Vico  formed  most  of  the  conceptions 
of  Platonism  and  Aristotelianism  which  afterwards  had  consider- 
able influence  in  moulding  his  system  of  thought.  These  con- 
ceptions reached  him  at  second  hand,  through  the  treatises  of 
scholastic  and  renaissance  writers,  and  they  were  consequently 
often  misleading,  if  not  entirely  false.  So  little  was  he  acquainted 
with  Greek  literature  that  he  confounded  Zeno  the  Eleatic  with 
Zeno  the  founder  of  Stoicism. 

When,  in  1694,  Vico  returned  to  Naples  he  found  himself  out 


350  vico 

of  touch  with  the  intellectual  life  of  the  time .  The  teaching  of  the 
Italian  renaissance  had  been  supplanted  by  an  influx  of  French 
philosophy.  The  vogue  which  Cartesianism  enjoyed  had  dulled 
the  fame  of  Ficino  and  Pico  della  Mirandola.  Contempt  for 
classical  learning  and  all  authority  had  become  almost  universal, 
and  the  recluse  issuing  from  the  woods  of  Vatolla  found  himself 
a  stranger  in  his  own  country.  This  estrangement  must  have 
proved,  at  the  outset  of  his  more  public  life,  a  serious  obstacle  to 
success.  Staving  off  destitution  by  writing  adulatory  verses  and 
by  composing  funeral  orations,  Vico  at  one  time  contemplated 
becoming  a  theatine  monk,  but  the  desire  of  serving  his  aged 
parents  deterred  him,  and  he  set  about  obtaining  employment. 
He  was  refused  the  post  of  secretary  to  the  city  of  Naples,  but 
ultimately,  in  1697,  he  obtained  a  professorship  of  rhetoric  in 
the  university,  with  a  salary  only  slightly  exceeding  100  scudi. 
He  married,  shortly  afterwards,  Teresa  Destito,  the  daughter  of 
a  scrivener,  who  was,  however,  herself  unable  to  write  even  her 
name.  His  children  did  not  reach  to  any  distinction — except 
perhaps,  Gennaro,  who  succeeded  his  father  hi  the  chair  of  elo- 
quence, but  whose  principal  claim  to  recollection  is,  undoubtedly, 
his  parentage. 

The  lectures  delivered  by  Vico  at  the  opening  of  seven  academic 
years,  together  form  the  earliest  consecutive  embodiment  of  his 
views  on  education,  a  topic  in  which  he  always  took  particular 
interest.  The  discourse  delivered  in  1708  was  subsequently 
published  under  the  title  De  Ratione  Studiorum.  It  is  the  earliest 
of  Vico's  writings  in  which  clear  indications  of  the  subsequent 
progress  of  his  mind  are  to  be  found.  His  aversion  from  the 
critical  method  of  Descartes,  his  confidence  in  the  spontaneous 
workings  of  the  human  mind,  the  cultivation  of  the  memory  and 
of  the  imagination,  the  merits  of  the  "  topics  "  of  the  rhetoricians, 
are  points  here  touched  upon  with  vigour,  although  not  without 
some  of  the  bias  which  always  remained  characteristic  of  him. 
Whilst  teaching  rhetoric,  Vico  still  devoted  his  attention  to  legal 
studies.  He  gave  lessons  in  jurisprudence,  and  wrote  several 
brochures  on  the  civil  law.  His  assertion  that  the  great  Roman 
lawyers  had  been  exclusively  Patrician  in  origin,  was  the  occasion 
of  a  controversy  with  the  royal  prefect  of  studies  which  ulti- 
mately resulted  in  the  production  of  Vico's  principal  legal  treatise, 
the  De  uno  universi  iuris  principio.  When  in  the  following  year 
(1721)  the  complimentary  volume,  De  constantia  Jurisprudent^, 


vico  351 

had  been  published,  Vico  might  not  unreasonably  have  claimed 
to  be  one  of  the  most  distinguished  jurists  in  Italy. 

For  some  time  previous  to  1723  he  had  contemplated  seeking  a 
professorship  of  law,  and  on  the  death  of  Campanile,  the  principal 
morning  reader  in  Civil  Law,  he  presented  himself  as  a  candidate 
for  the  vacant  chair.  Besides  the  merit  of  his  works,  the  fact 
that  he  was  the  senior  member  of  the  university,  for  which  he 
had  won  considerable  renown,  led  Vico  to  hope  for  success  in  the 
competition.  Many  forces  militated,  however,  against  his  candi- 
dature. He  was  without  personal  or  family  influence,  his  political 
writings  had,  probably,  created  many  enemies,  and  he  was 
prevented,  partly  by  his  earnestness,  from  making  a  favourable 
impression  on  persons  accustomed  to  cringing  adulation.  The 
competitors  were  given  a  day  to  compose  a  dissertation  on  one 
of  several  texts  from  the  Digest,  which  were  selected  by  drawing 
lots.  The  composition  of  Vico,  which  he  distributed  after  it  had 
been  delivered,  won  the  admiration  of  many  distinguished  men, 
but  the  professorship  was  awarded  to  Domenico  Gentile,  a  person 
of  whom  nothing  is  now  known.  Vico  henceforth  lost  all  hope 
of  recognition  by  his  countrymen,  and,  although  he  lived  to  bless 
the  adversities  which  had  driven  him  back  to  his  literary  pursuits 
and  thus  enabled  him,  as  he  says  in  the  autobiography,  to  wreak 
a  noble  vengeance  on  his  detractors,  his  failure  embittered  his 
life  and  made  his  lot  seem  harder  than  before.  But,  however 
sad  it  may  seem  that  none  of  the  joys  of  worldly  success  should 
be  his,  we  cannot  regard  the  fact  as  unmitigated  evil  if  we  recollect 
that  to  it  is  probably  due  the  production  of  the  Scienza  Nuova, 
Vico's  most  permanent  contribution  to  the  world's  literature. 

"  Sempre  natura,  se  fortuna  trova 
discorda  a  se,  come  ogni  altra  semente 
fuor  di  sua  region,  fa  mala  prova." 

The  preoccupations  which  the  possession  of  the  chair  he 
coveted  would  necessarily  have  entailed,  might  in  all  probability 
have  turned  him  from  the  paths  of  research,  in  which  he  found  a 
glory  denied  to  his  puny  competitors.  The  New  Science  appeared 
in  1725.  It  was  the  logical  development  of  his  earlier  work, 
and,  by  boldly  dedicating  it  to  the  universities  of  Europe,  Vico 
appealed  to  the  tribunal  of  all  the  learned  to  judge  his  claim  to 
intellectual  greatness.  Scarcely  any  writer  is  so  entirely  without 
precursors  :  Michelet  was  exaggerating  but  slightly  when  he 
declared  :  "  Avant  Vico  le  premier  nom  n'etait  pas  dit ;  apres  lui, 


352  vico 

la  science  6tait,  sinon  faite  au  moins  fondee."  The  historical 
method,  which,  in  most  departments  of  human  knowledge,  is  of 
immense  importance,  and  to  which  some  owe  their  very  existence, 
was  the  discovery  of  Vico. 

In  the  light  of  this  achievement  his  minor  merits  must  of  neces- 
sity pall.  With  the  intuition  of  genius  the  author  of  the  Scienza 
Nuova  felt  the  greatness  of  his  work  ;  he  had,  as  he  expressed  it, 
put  on  a  new  man.  "  Mi  ha  fermato,"  he  says,  "  come  sopra 
un'  alta  adamantina  rocca,  il  guidizio  di  Dio,  il  quale  fa  giustizia 
alle  opere  d'  ingegno  con  la  stima  dei  saggi." 

The  remaining  years  of  Vico's  life  were  devoted  to  the  revision 
of  his  great  work  and  to  the  composition  of  some  studies  of  minor 
importance.  The  second  edition  of  the  Scienza  Nuova  was  dedi- 
cated to  Clement  XII.  The  Pope  ordered  his  hearty  approval 
to  be  conveyed  to  Vico,  although  he  might  reasonably  have 
considered  it  far  more  subversive  than  the  De  iure  belli  et  pads, 
by  which  Vico  had  profited  so  greatly,  but  which  had  been  placed 
upon  the  "  Index  expurgatorius."  A  third  edition  was  published 
in  1744,  but  Vico  was  nearing  the  end  of  his  life,  and  the  notes 
and  additions  inserted  by  his  son  Gennaro  rendered  this  edition 
obscure  and  worthless. 

In  1735,  at  the  instance  of  the  principal  chaplain  of  Charles  of 
Bourbon.  Vico  was  appointed  royal  historiographer.  But  favour 
had  come  too  late.  There  is  a  deep  melancholy  in  the  closing 
scenes,  which  have  been  described  for  us  by  a  devoted  pupil 
named  Solla.  Although  tortured  by  disease  and  far  advanced 
in  years,  Vico  continued  to  lecture  on  rhetoric  and  to  give  private 
instruction.  "The  throng  of  young  men  at  his  lectures  was 
innumerable.  He  did  not  confine  his  teaching  to  mere  precepts 
of  rhetoric,  but  sought  to  broaden  the  minds  of  his  hearers  by 
apt  illustration  and  instruction  in  general  knowledge."  "  He 
taught,"  says  his  pupil,  "  tutto  lo  scibile."  In  his  very  dejection 
Vico  preserved  his  greatness  of  character.  His  devotion  to  duty 
was  complete,  and  the  pupils  whom  he  instructed  at  his  house 
benefited  by  his  great  erudition  and  were  carefully  trained  to 
think  and  to  act  worthily.  On  January  20,  1 744,  he  passed  away 
whilst  attempting  to  repeat  one  of  the  psalms.  His  friends  and 
all  the  learned,  says  Solla,  deeply  regretted  him,  enmity  was  put 
aside,  and  envy  hushed  in  the  recollection  that  Italy  had  lost  a 
great  citizen. 

Vico  was  of  medium  height,  his  features  clear  cut  and  some- 


Vico  353 

what  aquiline.  To  his  hasty  temper  was  due  much  of  the  ani- 
mosity he  excited,  but  the  latent  fire  of  his  nature  was  also  a 
force  which  urged  his  genius  forward,  with  splendid  perseverance, 
towards  the  accomplishment  of  his  task.  If,  in  his  weaker 
moments,  quick  outbursts  of  indignation  afforded  his  adversaries 
a  pretext  for  vilification,  they  were  but  indications  of  a  strength 
of  will  which  made  it  possible  for  him  to  bear  up  against  "  out- 
rageous fortune." 

Like  Buckle,  like  Rousseau  and  many  distinguished  men, 
Vico  had  not  enjoyed  the  advantages  to  be  derived  from 
following  a  regular  course  of  studies.  The  fact  is  apparent  upon 
the  face  of  his  writings.  Their  profundity  and  originality  are, 
no  doubt,  greater  than  they  might  have  been,  had  his  mind  been 
trained  to  conform  to  recognized  literary  precepts  ;  but  much  of 
the  obscurity  of  his  thought  must  be  attributed  to  his  not  having 
passed  through  any  organized  curriculum,  and  it  can  hardly  be 
doubted  that  the  involved  style  which  rendered  many  of  his 
writings  unpleasant  to  read,  and  hindered  his  being  duly  appre- 
ciated by  his  contemporaries,  was  largely  due  to  the  same  cause. 
Vico  has  been  accused  of  servility,  and  the  charge  cannot  be  said 
to  be  unfounded.  His  speeches,  letters  and  biographies  teem 
with  overdrawn  expressions  of  adulation.  "Tarn  bonus  erat 
laudator,"  says  a  contemporary,  "  ut  immortalitatem  donare 
posse  putaretur."  It  is  well,  however,  before  passing  judgment 
on  him,  to  remember  that  to  one  of  his  lowly  origin  nobles  and 
prelates  must  have  appeared  very  great  folk,  and  that  it  was 
only  through  their  favour  that  he  could  hope  to  obtain  a  hearing 
at  a  time  such  as  that  in  which  he  lived.  His  praise  was  often 
merely  an  ornate  expression  of  gratitude,  and  to  his  countrymen 
cannot  have  sounded  so  excessive  as  to  a  less  imaginative  race. 
Let  it  be  added,  also,  that  no  laudation  was  directed  to  the  further- 
ance of  a  shameful  end,  nor  to  the  stifling  of  what  he  believed  to 
be  true. 

Although  a  tradition  which  is  traced  to  Genovesi,  a  contem- 
porary of  Vico,  ascribes  the  obscurity  of  his  style  to  desire  to 
conceal  the  heterodoxy  of  his  opinions,  the  suggestion  may  be 
safely  rejected  in  view  of  his  manifestly  religious  spirit,  and  of  the 
fact  that  he  enjoyed  the  friendship  of  the  ecclesiastical  authorities, 
including  even  the  censor  himself.  Vice's  opinions  contained 
much  which  the  Church  might  fear,  but,  whether  he  was  himself 
aware  of  their  character  or  not,  his  good  faith  is  unmistakable. 

24 


354  Vlco 

As  has  been  said,  Vigo  was  imbued  with  a  reverent  spirit,  his 
mind  turned  around  deep  religious  convictions.  Nothing  is 
more  strange  than  the  frankness  with  which  he  accepts  the  adage 
"Multa  sunt  vera  secundum  philosophiam  sed  non  secundum 
theologiam."  Affirming  propositions  which  had  been  hitherto 
regarded  as  contradictory  to  Scripture,  Vico  brushes  the  difficulty 
aside  with  the  remark  that  his  opinions  relate  to  Gentile  and  not 
to  Jewish  history.  In  one  to  whom  the  human  aspect  of  the  Bible 
was  unknown,  such  language  is  not,  perhaps,  so  strange  as  it  may 
seem  to  a  modern  ear,  but  the  inconsistency  of  this  position  is 
best  accounted  for  by  the  reflection  that  Vico  was  entirely  un- 
conscious of  the  subversive  tendency  of  his  historical  method. 

Vice's  Teaching. — The  teaching  of  Vico  did  not  result  in 
the  formation  of  a  distinct  school  of  philosophy,  as  did  that 
of  Descartes  and  Locke  ;  but  during  his  lifetime  and  for  a 
short  period  after  his  death,  his  admirers  in  Naples  and  even 
in  the  Northern  Italian  cities  were  both  numerous  and  zealous. 
In  the  Biografia  degli  uomini  illustri  di  Napoli,  Martuscelli  relates 
that  Vico's  house  was  the  rendezvous  of  all  the  literary  men 
of  the  time  ;  and  Romano,  a  contemporary  critic,  states  that 
he  feared  to  publish  his  work  controverting  Vico's  historical 
opinions  because  of  the  number  of  the  latter's  adherents  and 
of  their  strongly  partisan  feeling.  "A  great  part  of  our  city 
would,"  he  says,  "  have  supported  Vico  against  any  opponent." 
The  same  critic  tells  us  that  the  "  Vichiano,"  or  fanatical 
Vico  scholar,  quickly  became  a  type  in  which  devotion  to  the 
master  was  not  always  equalled  by  general  intelligence.  Some 
there  were,  of  these  scholars,  who  would  read  nothing  which 
Vico  had  omitted  to  explain.  Such  elements  as  these,  although 
they  help  to  show  the  attraction  exercised  by  an  original  mind, 
were  hardly  calculated  to  form  the  nucleus  of  a  new  system.  A 
wider  sphere  of  development  presented  itself  in  the  North,  and 
the  interest  which  Vico  excited  at  Venice,  where  the  trammels 
of  literature  were  less  tightly  drawn,  made  it  seem  for  a  while 
that  his  ideas  had  fallen  on  good  ground.  But  the  times  were 
out  of  joint.  Italy  had  ceased  to  take  a  prominent  place  among 
the  thought-producing  nations,  and  the  hope  of  Vico  to  renovate 
her  and  win  her  a  place  beside  Holland  and  Germany  demanded 
the  accomplishment  of  a  task  which  was  not  to  be  completed 
before  the  lapse  of  more  than  a  century.  The  greatness  of  Vico 
itself  explains  his  failure.  "  He  had,"  says  Michelet,  "  forgotten 


VICO  355 

the  language  of  the  past,  and  could  speak  only  that  of  the  future." 
When  his  speculations  were  at  last  made  known  to  the  nineteenth 
century  their  worth  was,  in  many  instances,  no  longer  recogniz- 
able, because  they  had  ceased  to  rank  as  discoveries.  The  first 
movement  towards  a  better  appreciation  of  Vico  took  place  in 
Lombardy  at  the  opening  of  the  nineteenth  century.  A  number 
of  Neapolitan  exiles  published  at  Milan  some  critical  essays  on 
the  system  of  their  distinguished  countryman,  and  there  rapidly 
came  into  being  a  new  growth  of  Vico  literature  which  spread 
beyond  the  Alps  when,  in  1807,  Wolf  published  a  mongoraph  in 
reply  to  the  charge  of  having  borrowed  his  Homeric  theory  from 
the  Scienza  Nuova.  The  publication  of  Niebuhr's  Ro'mische 
Geschichte,  in  1811,  brought  Vico  into  still  greater  prominence, 
when  it  was  pointed  out  that  there  was  a  remarkable  resemblance 
between  the  view  of  early  Roman  history  there  propounded,  and 
the  almost  forgotten  hypotheses  of  the  Neapolitan  philosopher. 

The  final  impulse,  to  which  the  complete  recognition  of  Vico 
is  undoubtedly  due,  was  given  by  Michelet,  who,  in  1827,  pub- 
lished a  translation  of  the  Scienza  Nuova  and  of  some  of  the  minor 
works,  accompanied  by  a  very  eulogistic  introduction,  in  which 
the  great  historian's  youthful  zeal  has,  perhaps,  led  him  to  display 
too  freely  the  enthusiasm  of  a  discoverer.  From  thenceforward 
the  attention  of  eminent  men  has  in  many  countries  been  directed 
to  the  study  and  elucidation  of  Vico.  Cousin,  Mill  and  Mancini 
were  acquainted  with  the  theories  of  the  Scienza  Nuova.  Special 
studies  on  Vico  have  at  intervals  appeared  in  French,  German, 
and  English,  and  although  M.  Penjon,  writing  in  1888,1  declared 
"  comme  la  mode  etait  venue,  elle  a  passe,"  if  we  judge  from  the 
fact  that,  in  almost  every  succeeding  year,  new  students  of  Vico 
have  appeared,  we  may  reasonably  believe  that  his  fame  is  not 
dead  nor  even  diminished,  but  that  the  poor  Neapolitan  professor, 
whom  a  contemporary  satirist  pictured, 

"  Stralunato  e  smunto 
co  11  ii  ferola  in  mano," 

has  survived  failure  and  at  last  come  by  his  own. 

We  have  now  described  in  their  broad  outlines  the  age  in  which 
Vico  lived  and  the  vicissitudes  of  his  lif e  and  writings .  It  remains 
to  give  a  brief  account  of  his  opinions,  to  point  out  their  value, 
and  so  to  place  ourselves  in  a  position. from  which  we  may  judge 
of  his  comparative  worth. 

1  Revue  Philosophique,  1888,  xxv. 


356  V1CO 

The  earliest  "of  Vice's  philosophical  writings  are,  as  has  been 
said,  his  Academic  speeches.  He  did  not  himself  attach  any 
permanent  value  to  them,  and  even  regretted  having  published 
the  only  one  which  was  printed  before  the  nineteenth  century. 
They  have,  however,  considerable  interest  both  as  furnishing  the 
earliest  indications  of  his  mature  opinions,  and  because  they 
show  the  methods  of  study  which  he  advocated  and,  to  a  con- 
siderable extent,  himself  followed.  The  Orations  are  six  in 
number,  and  are  composed  in  a  clear  style.  The  first  deals  with 
the  importance  of  introspection.  The  Delphic  inscription  yvwQ 
a-eavroiv  is  represented  as  the  beginning  of  all  wisdom.  Self- 
knowledge  leads  to  the  knowledge  of  God.  The  dignity  of  human 
nature  is  shown  by  the  fact  that  the  heathen  gods  were  personifi- 
cations of  human  attributes.  The  proper  study  of  mankind  is 
man,  and  by  developing  his  mind  he  fulfils  the  fundamental  law 
of  his  being  and  attunes  himself  to  the  Divine  purposes.  The 
struggle  between  the  dictates  of  wisdom  and  man's  perverse 
tendencies  is  dwelt  on  in  the  second  Oration.  The  Divine  reason 
generates  the  world  of  realities,  and  by  exercising  his  reason 
alone  can  man  have  knowledge  of  that  world.  Wisdom  and 
virtue  are  in  themselves  identical. 

In  the  third  Oration  the  functions  of  literature  are  indicated 
and  the  enormity  of  their  abuse  insisted  upon.  The  conscious- 
ness of  ignorance  is  the  mark  of  true  learning.  Vico  teaches  in 
the  fourth  and  fifth  Orations  that  an  altruistic  ideal  should 
govern  the  pursuit  of  science,  that  the  seeker  after  knowledge 
should  emulate  the  Divine  goodness  in  promoting  the  common 
welfare.  He  advances  a  remarkable  argument  to  prove  that 
war  is  connected  with  literary  activity,  and  that  both  phenomena 
have,  in  fact,  usually  synchronized.  This  is  the  earliest  of  Vice's 
historical  generalizations.  The  sixth  and  last  Oration,  published 
under  the  title  De  ratione  studiorum,  may  be  looked  on  as  forming, 
in  certain  respects,  an  introduction  to  Vice's  later  works.  As 
appears  from  the  Autobiography,  the  attention  of  Vico  was 
directed,  on  his  return  to  Naples,  to  the  Cartesian  philosophy 
and  to  what  he  came  to  consider  its  fundamental  error.  Vico 
was  unable  to  appreciate  the  causes  which  had  brought  the 
scholastic  philosophy  into  disrepute.  His  education  had  kept 
him  apart  from  the  action  of  the  forces  that  led  the  seventeenth 
century  to  embrace  so  readily  the  universal  doubt  of  Descartes. 
To  most  of  his  contemporaries  severance  from  the  past  and  total 


Vico  357 

rejection  of  its  authority  seemed  the  only  rational  means  by  which 
to  emancipate  the  mind  and  initiate  an  acceptable  system  of 
thought :  to  Vico,  steeped  as  he  was  in  the  wisdom  of  the  ancients, 
and  with  his  unqualified  admiration  for  Roman  Jurisprudence, 
Descartes'  pretension  seemed  a  mere  madness,  capable  of  causing, 
if  accepted,  irreparable  loss.  In  the  De  ratione  studiorum,  there- 
fore, he  proposes  to  discuss  this  fundamental  question  of  method, 
and  to  show  cause  why  the  principles  of  the  Discours  sur  la 
methode  should  be  repudiated  in  any  sound  system  of  education. 
He  was  aware  of  the  service  Descartes  had  rendered  by  asserting 
the  importance  of  individual  judgment  (vide  Answer  to  a  criti- 
cism of  his  De  antiquissima  sapientia),  but  the  assertion  that  to 
know  Latin  was  to  know  no  more  than  Cicero's  servant  seemed 
to  one  of  Vico's  temperament  to  betray  a  total  lack  of  the  his- 
torical sense.  The  discovery  of  the  application  of  algebra  to 
geometry  might  ultimately  lead  to  that  of  the  differential  cal- 
culus, but  even  were  Descartes  able  to  construct  the  world  out  of 
motion  and  extension  he  could  not  reconstruct  its  wisdom,  the 
accumulated  product  of  ages.  The  attempt  to  confine  instruc- 
tion to  the  mathematical  and  kindred  sciences,  to  dispense  with 
the  study  of  subjects  in  which  merely  moral  certitude  is  attain- 
able, cannot  be  justified,  for  it  fails  to  take  into  account  man's 
proper  nature.  Vico  perceived  the  truth  of  the  rule  governing 
all  modern  education,  which  was  afterwards  more  clearly  enun- 
ciated by  Pestalozzi,  that  the  method  and  order  of  instruction 
should  be  adapted  to  the  natural  course  of  intellectual  develop- 
ment. The  early  study  of  abstract  science  is  wrong  because  it 
fails  to  call  into  play  the  powers  that  are  strongest  in  childhood. 
Although  Vico  must  have  disapproved  Bacon's  scant  respect  for 
Aristotle  and  his  doctrines,  he  was  at  one  with  him  in  insisting 
on  the  reform  of  scientific  method,  on  the  importance  of  observa- 
tion and  experiment  in  natural  science,  and  he  desired  this  oration 
to  be  regarded  as  the  complement  of  the  De  augmentis  scientiarum. 
The  analytical  method  of  study  Vico  maintains  to  be  logically 
out  of  place  when  the  mind  has  not  been  already  stored  with  an 
adequate  knowledge.  Topic  must  precede  criticism.  The  hope 
that  the  secrets  of  nature  might  be  unlocked  by  the  mathematical 
reasoning  of  the  Cartesians  had  led  to  the  abandonment  of  prac- 
tical research.  Ethics  and  politics  had  ceased  to  be  seriously 
taught.  These  are  merely  examples  of  the  evils  which  result 
from  the  employment  of  defective  method.  The  argument  then 


358  VTCO 

proceeds  to  seek  confirmation  from  the  history  of  Roman  law, 
and  the  discussion  is  ended  by  an  apology  for  the  vastness  of 
the  subject  undertaken.  Rhetoric,  in  the  true  sense,  is  concerned 
with  all  wisdom. 

The  point  of  view  of  the  writer  of  this  discourse  is,  as  has  been 
seen,  essentially  that  of  a  teacher.  The  difficulties  Vico  had 
encountered  in  pursuing  his  own  studies  had,  no  doubt,  impressed 
on  his  mind  the  practical  rather  than  the  philosophic  view  of 
the  importance  of  method.  His  criticism  of  Descartes  is  neces- 
sarily crude,  because  he  was  but  ill  acquainted  with  that  philo- 
sopher's opinions,  and  appreciation  of  the  immense  importance 
of  Descartes'  mathematics  could  hardly  be  expected  in  a  publicist 
who  declared  that  he  had  not  succeeded  in  crossing  the  pons 
asinorum.  The  De  ratione  is,  however,  notwithstanding  its 
obvious  limitations,  based  on  sound  educational  principles.  The 
broad  grounds  on  which  Cartesian  doubt  is  rejected  are  accept- 
able at  the  present  day,  and  the  necessity  of  providing  an  educa- 
tion before  ah1  things  practical  is  one  that  has  gained  universal 
recognition.  "Men  must  not  be  taught,"  said  Vico,  hi  one  of 
his  letters,  "  as  if  they  were  destined  to  enter  a  world  composed 
of  lines,  numbers  and  algebraic  symbols  !"  Such  common-sense 
views  were  rare  in  the  eighteenth  century. 

The  prominence  given  in  the  De  ratione  to  the  study  of  juris- 
prudence is  an  indication  of  the  importance  Vico  attached  to  it. 
The  insight  into  the  past  which  a  knowledge  of  Roman  law  must 
bring  with  it,  was,  in  his  opinion,  sure  to  create  that  ser.se  of 
human  solidarity  which  is  of  the  essence  of  wisdom.  Juris- 
prudence was,  therefore,  the  most  indispensable  of  studies  ;  it 
was  the  foundation  on  which  Vico  subsequently  reared  the  struc- 
ture of  historic  criticism.  Before  dealing  with  Vico's  works  on 
jurisprudence  it  will  be  necessary  to  briefly  refer  to  a  book 
intended  to  form  part  of  a  philosophic  treatise  which  Vico  did 
not  live  to  complete.  The  De  antiquissima  Italorum  sapientia, 
more  usually  known  as  the  Liber  metaphysicus,  led  to  a  long  con- 
troversy immediately  after  its  publication,  and  it  constitutes  in 
many  respects  a  strange  anomaly  in  the  development  of  its 
author's  mind.  The  science  of  language  may  be  said  not  to  have 
existed  before  the  foundation  of  the  Asiatic  Society  of  Calcutta. 
The  systematic  study  of  all  languages,  with  a  view  to  ascertain- 
ing the  rules  that  govern  their  formation  and  development,  has 
been  undertaken  in  times  comparatively  recent :  the  task  would 


vico  359 

have  been  fruitless  until  a  knowledge  of  Sanskrit  made  it  possible 
to  see  the  underlying  unity  of  European  languages.  The  im- 
mense strides  that  the  new  branch  of  knowledge  has  made  since 
Sanskrit  became  part  of  university  curricula  render  it  difficult 
for  us  to  appreciate  the  attempts  made  in  previous  times  to  deal 
with  the  phenomena  of  language.  Vico  proposed,  in  writing  the 
Liber  metaphysicus,  to  discover  the  principles  of  a  primeval 
philosophy  by  studying  the  origins  of  Latin  words.  The  belief 
in  prehistoric  wisdom  was  not  a  new  one.  From  the  Hebrew 
story  of  the  Fall  down  to  the  belated  lucubrations  of  Mr.  Glad- 
stone, there  has  been  a  steady  flow  of  contributions  to  this  attrac- 
tive subject.  Vice's  attention  was  first  drawn  to  it  by  the  De 
sapientia  veterum  of  Bacon.  But  the  end  he  had  in  view  was 
different,  as  it  was  from  that  of  the  Cratylus  of  Plato,  from  which 
he  professed  to  draw  much  of  his  inspiration.  The  importance 
of  etymological  studies  may  have  been  brought  home  to  Vico  by 
his  acquaintance  with  Roman  law.  The  theory  clung  to  for  a 
thousand  years,  that  the  letter  of  the  law  must  remain  unim- 
paired, that  the  quasi-sacred  structure  of  the  Twelve  Tables 
contained  the  whole  law — finis  asqui  iuris — cannot  have  failed  to 
impress  on  a  mind,  already  imbued  with  veneration  for  the  past, 
a  keen  sense  of  the  wisdom  of  the  ancient  world.  Worship  of 
the  past  is  a  common  creed  among  scholars.  In  thus  founding  a 
philosophy  on  the  study  of  the  past,  Vico,  no  doubt,  also  sought 
to  find  a  solid  ground  on  which  to  make  a  stand  against  the 
inroads  of  Cartesianism.  To  an  adversary  who  could  establish 
on  an  historical  basis  the  whole  of  human  knowledge,  it  were 
folly  to  oppose  the  all-sufficiency  of  individual  experience. 
Although  the  entire  fabric  of  the  De  antiquissima  sapientia  had 
to  be  definitely  abandoned  when  Vico  wrote  the  New  Science,  it 
may  be  useful  to  note  a  few  of  the  main  positions  of  the  early 
work.  The  first  and  principal  question  which  Vico  proposed  to 
solve  was  that  of  the  origin  and  validity  of  knowledge.  The 
Latins,  according  to  Vico,  held  that  that  which  is  made  is  alone 
true.  Complete  truth  resides  only  in  the  Divine  mind.  God 
has  made  all  things,  and  contains  them  in  Himself ;  hence  His 
mind  has  entire  knowledge  of  them.  The  mind  of  men,  on  the 
other  hand,  is  outside  created  things,  and  is  therefore  unable  to 
attain  to  any  knowledge  of  them  beyond  what  is  purely  super- 
ficial. Divine  knowledge  may  be  compared  to  a  solid  figure, 
human  knowledge  to  a  plane.  Adopting  the  principle  that 


360  vico 

nothing  is  knowable  of  which  the  cause  is  unknown,  Vico  denies 
reality  to  human  knowledge  which  is  not  confined  to  the  products 
of  the  mind.  The  verum  must  always  be  thefactum,  and  nothing 
more.  Reality  is  for  us  confined  to  abstract  truth,  the  genera- 
tion of  our  own  mind.  The  logical  outcome  of  this  position  is 
complete  surrender  to  the  Cartesians.  Man  is  the  god  of  his 
mental  world  of  abstractions  ;  beyond  that  world  all  is  darkness 
and  unreality.  From  the  " cogito,  ergo  sum"  to  the  complete 
certitude  of  mathematical  truth,  a  universe  of  form  and  number, 
these  are  man's  domain,  but  with  them  it  ends.  This  test 
of  truth  was  too  artificial  to  bear  examination.  The  fact  that 
an  idea  is  generated  in  the  mind  affords  guarantee  that  it  has  its 
counterpart  in  the  outer  world.  Yet  Vico  was  led  to  use  his 
criterium  as  an  argument  against  scepticism,  and  to  urge  that 
the  mere  comprehension  of  causes  was  sufficient  to  establish  the 
existence  of  Deity.  By  asserting  the  claim  of  metaphysical  truth 
to  rank  before  that  of  mathematics,  Vico  virtually  ceased  to 
maintain  the  validity  of  the  text.  Metaphysics  is  not  a  knowledge 
of  causes  as  such,  and  it  is  only  by  abandoning  the  notion  that 
notitia  rerum  per  causas  is  the  only  reliable  truth,  and  by  relying 
like  Fichte  and  Hegel,  on  an  instinctive  belief  in  the  absolute, 
that  the  science  of  Being  can  be  placed  at  the  top  of  the  scale  of 
certitude. 

The  inconsequence  of  Vico's  metaphysics  was  in  great  part  due 
to  the  desultory  character  of  his  training,  and  to  the  fact  that  he 
was  lacking  in  the  clearness  of  mental  analysis,  without  which 
metaphysics  become  a  mere  logomachy.  His  mind  had  not 
assimilated  the  store  of  notions  he  derived  from  Greek  philo- 
sophy and  from  his  immediate  predecessors.  To  one  not  natur- 
ally moulded  for  such  studies,  confusion  was  the  inevitable  result. 
The  doctrine  of  metaphysical  points,  erroneously  attributed  by 
Vico  to  Zeno  of  Citium,  is  treated  in  the  De  Sapientia  in  a  charac- 
teristically confused  and  unsatisfactory  manner.  Against  the 
Pythagorean  view  that  everything  must  be  reduced  to  a  sum 
of  points,  Zerio  the  Eleatic  had,  by  the  argument  from  dichotomy, 
established  the  mathematical  view  that  a  point  is  merely  position 
wi  hout  magnitude.  If  a  line  be  composed  of  points  we  must  be 
able  to  say  how  many  points  it  contains,  but  we  can  always 
divide  a  lire  into  halves  so  that  if  it  be  made  up  of  points  there 
will  always  be  more  than  any  given  number.  The  argument  was 
one  of  many  advanced  by  Zeno  to  prove  the  unreality  of  matter 


VICO  361 

and  motion  and  the  falsity  of  the  pluralist  theories  of  the  Pytha- 
goreans, and  was  intended  to  accredit  the  pure  monism  of 
Parmenides.  It  served  the  same  end  as  the  celebrated  puzzle 
of  Achilles  and  the  tortoise.  The  metaphysical  point  was, 
therefore,  according  to  Zeno,  a  mere  figment  of  the  mind,  and 
Vice's  belief  that  he  had  propounded  the  doctrine  of  points 
betrayed  grave  ignorance  of  Greek  philosophy.  The  fact  that 
the  Scholastics  had  represented  Zeno  of  Citium  as  teaching  that 
matter  was  ultimately  composed  of  points  no  doubt  led  to  the 
belief  of  Vico  that  the  Zeno  of  his  imagination  had  solved  the 
problem  of  "the  one  and  the  many  "  by  means  of  the  doctrine 
of  points.  The  great  question  as  to  how  the  absolute  is  related 
to  the  relative,  or  in  other  words  how  God  has  produced  nature, 
had  tormented  the  Greek  mind,  and  it  was  now  to  receive  its 
final  solution  by  aid  of  an  old  conception  applied  in  the  light  of 
revelation.  The  points  are,  according  to  Vico,  immaterial — they 
belong  to  the  intelligible  world,  they  are  without  material  attri- 
butes, they,  like  the  monads  of  Leibnitz,  produce  extension  with- 
out being  themselves  extended,  they  are  the  essences  or  virtutes 
from  which  all  things  proceed.  These  points  emanating  from  the 
Divinity  are  the  materia  prima  of  created  things,  the  "  form  " 
of  which  is  impressed  on  them  by  the  Divine  mind.  Although 
Vico  sometimes  appears  to  regard  the  points  as,  like  the  substance 
of  Spinoza,  ens  per  se  existens,he  does  not  consistently  do  so,  for  he 
attempts  to  distinguish  the  Divine  substance  from  that  of  which 
the  points  are  composed  ;  whilst,  in  other  passages,  he  appears 
to  suggest  that  the  points  are  in  reality  one  and  indivisible,  and 
he  even  boldly  lays  down  in  his  Risposta  propositions  which, 
literally  read,  involve  complete  pantheism.  The  evident  dangers 
of  heterodox  views  led  Vico  to  make  a  declaration  of  his  adherence 
to  the  tenets  of  the  Church,  but  the  natural  trend  of  his  meta- 
physical speculations  was  undoubtedly  towards  pantheism,  and 
the  tardy  insertion  of  a  saving  clause  merely  serves  to  accentuate 
the  difficulty.  Some  of  the  positions  taken  in  the  De  sapi&ntia 
are  purely  Cartesian — e.g.,  that  nature  abhors  a  vacuum  ;  whilst, 
as  we  have  seen,  his  metaphysics  are  strikingly  similar  to  those 
of  Leibnitz.  The  whole  work  teems  with  contradictions  and 
confusions  into  which  it  is  useless  to  enter,  and  nowhere  has 
Vico  attempted  to  furnish  satisfactory  evidence  of  his  theories. 
So  useless  is  his  theory  of  points  to  serve  as  an  explanation  of 
the  problem  which  he  set  himself,  that  he  unconsciously  drifts 


362  vico 

from  it  (as  we  have  seen)  towards  pantheism.  The  De  sapientia 
is  undoubtedly  the  least  original  and  the  worst  thought  out  of 
all  the  compositions  of  Vico.  A  striking  testimony  to  this 
opinion  is  afforded  by  the  fact  that  Mamiani  claimed  Vico  as  a 
sensationalist,  Rosmini  held  him  to  be  an  idealist,  and  in  the 
opinion  of  Gioberti  his  doctrine  tended  towards  realism. 

Vico  and  Jurisprudence. — We  have  now  given  a  sufficient 
sketch  of  the  earlier  writings  of  Vico,  and  may  proceed  to  a 
short  exposition  of  his  juristic  and  moral  philosophy.  Besides 
the  fact  that  the  legal  side  of  the  philosopher  is  of  more 
direct  interest,  it  should  not  be  forgotten  that  his  fame  in 
wider  fields  of  speculation  is  largely  due  to  a  profound  study 
of  Roman  law,  and  to  the  broad  grasp  of  the  principles  of 
historical  development  which  a  thorough  acquaintance  with 
both  civil  and  canon  law  could  alone  enable  him  to  attain 
to.  The  experience  of  Vico  as  a  teacher  and  his  ambition  to 
obtain  a  chair  of  jurisprudence  had  probably  some  influence 
in  determining  the  direction  of  his  thought.  In  what  appears 
to  have  been  a  purely  fortuitous  way,  he  came  to  read  the  De 
iure  belli  et  pads  of  Hugo  Grotius.  The  book  had  been  published 
in  1625,  and  had  exercised  a  very  profound  influence  in  Europe. 
Gustavus  Adolphus  carried  a  copy  with  him  in  his  campaigns, 
and  so  rapidly  did  the  science  created  by  Grotius  assume  im- 
portance that  the  Elector  Palatine  founded  a  professorship  of 
International  Law  at  Heidelberg  within  the  lifetime  of  the  Dutch 
jurist.  Although  the  De  iure  was  mainly  practical  in  its  aims, 
the  fact  that  it  presented  a  very  broad  and  entirely  novel  view 
of  a  department  of  law  unknown  to  the  Roman  world  rendered 
it  antecedently  probable  that  the  work  would  impress  a  specu- 
lative mind  such  as  Vice's.  It  must  undoubtedly  have  led  him 
to  enlarge  his  previous  notions  of  the  domain  of  law,  and  sharp- 
ened his  perception  of  the  principles  which  originate  and  govern 
the  legislation  of  mankind.  The  conception  that  human  nature 
is  the  mother  of  rights,  naturalis  iuris  mater  quce  nos  etiamsi  re 
nidla  indigeremus  ad  societatem  mutuam  appetendam  ferret — the 
belief  in  a  common  human  nature  governed  by  a  social  instinct, 
the  oUeiWt<?  of  the  Stoics — became  a  principle  on  which  Vico 
built  his  philosophy  of  law  and,  eventually,  his  philosophy  of 
history.  True  it  is  that,  whilst  expressing  his  indebtedness  to 
Grotius,  Vico  thought  he  saw  serious  ground  for  criticizing  him. 
As  his  own  mind  began  to  perceive  the  true  nature  of  the  his- 
torical method,  the  accumulation  of  authorities  and  the  display 


vico  363 

of  erudition  in  the  De  iure  seemed  less  and  less  philosophic.  It 
became  apparent  to  Vico  that  the  natural  development  of  law 
must  be  dealt  with  in  a  fundamentally  different  manner.  It  is 
of  course  true  that  much  of  the  criticism  directed  by  Vico  against 
the  great  work  of  Grotius  is  beside  the  point.  The  supreme  im- 
portance which  Vico  attached  to  the  primary  source  of  legal 
principles  may  explain,  but  cannot  justify,  the  reproach  that 
Grotius,  by  severing  theology  from  law,  cut  the  latter  adrift 
from  its  vital  principle  and  deprived  it  of  the  power  of  fructifica- 
tion. In  the  eyes  of  modern  science,  and  even  in  those  of  later 
eighteenth-century  writers,  the  treatment  of  law  as  a  self-con- 
tained subject  marked  a  distinct  advance  in  that  department, 
and  might  be  regarded  as  a  manifestation  and  necessary  con- 
sequence of  the  new  spirit  which,  in  wider  fields  of  knowledge, 
had,  since  the  seventeenth  century,  been  substituting  the  idea 
of  a  natural  order  of  things  for  the  medieval  conception  of  Divine 
intervention.  It  seems  equally  futile  to  detract  from  the  merits 
of  Grotius  on  the  ground  that  he  was  insufficiently  acquainted 
with  municipal  law  and  its  historical  basis.  The  statement,  were 
it  true,  would  not  seriously  compromise  the  theses  which  Grotius 
intended  to  establish.  The  work  of  Grotius  is  undoubtedly  open 
to  censure,  both  in  point  of  style  and  of  the  absolutist  character 
of  polity  which  he  approved.  The  strange  view  of  natural  law 
which,  distinguishing  ius  naturale  simpliciter  from  that  pro  certo 
rerum  statu,  led  to  the  admission  of  slavery  and  the  savage  usages 
of  warfare  such  as  that  of  poisoned  weapons,  as  sanctioned  by 
natural  law,  may  well  be  considered  a  more  solid  ground  for  un- 
favourable comment.  The  confusion  into  which  Grotius  seems 
to  have  fallen  in  affiliating  positive  law  to  laws  of  nature  from 
which  at  the  same  time  it  derives  its  legitimacy  and  with  which 
it  may  nevertheless  be  in  contradiction,  leaves,  also,  ample  room 
for  objection.  The  explanation  of  the  unsatisfactory  character 
of  Vico's  criticism  of  Grotius  may,  perhaps,  be  found  in  the  fact 
that  the  aims  of  the  two  writers  had  little  in  common,  and  that 
whilst  the  jural  speculations  of  the  one  were  directed  towards 
the  elaboration  of  a  philosophico-historical  theory,  those  of  the 
other  tended  towards  an  end  primarily  practical,  and  probably 
gained  in  force  in  direct  proportion  to  their  severance  from 
speculative  topics. 

The  influence  of  Pufendorf  and  Gravina  on  Vico  seems  scarcely 
traceable,  although  the  former  is  frequently  cited  by  him  in  a 


364  VICO 

somewhat  vague  way,  as  are  also  Hobbes  and  Selden.  But  if 
there  be  a  direct  precursor  of  Vico  in  the  department  of  law,  it 
is  clearly  to  Grotius  that  the  honour  is  due.  He  was,  for  Vico, 
iurisconsultus  generis  humani.  Professor  Flint  has  ingeniously 
attempted  to  show  that  the  historical  method  applied  by  Vico 
to  the  study  of  law  and,  in  the  Scienza  Nuova,  to  that  of  the  social 
cosmos,  were  derived,  although  illogically,  yet  by  a  natural 
sequence,  from  the  arbitrary  criterion  of  certitude  laid  down  in 
the  Liber  metaphysicm.  The  restriction  of  knowledge  to  the 
truths  which  the  mind  has  itself  produced,  and  the  consequent 
necessity,  if  an  almost  entire  scepticism  was  to  be  avoided,  of 
admitting  a  further  field  of  mental  activity,  to  which  he  gave 
the  name  of  consciousness,  resulted  in  confusion  ;  but  it  also  led, 
in  the  view  taken  by  Professor  Flint,  to  the  great  idea  of  a 
development  of  human  thought  and  of  the  evolution  of  the  moral 
world.  The  wide  regions  of  belief,  in  which  the  arbitrary  rule 
of  verum  andfactum  had  no  application,  were,  by  a  great  rational 
process,  contemporaneous  and  conterminous  with  the  advance 
of  science,  gradually  to  be  incorporated  in  the  dominions  of  real 
knowledge,  where  they  would  be  subject  to  no  shadow  of  doubt. 
This  notion,  propounded  by  Vico  at  the  expense  of  strict  logic, 
may  well  have  been  the  nucleus  from  which  his  later  speculations 
derived  their  earliest  origin. 

Vice's  principal  work  on  law  is  entitled  De  uno  universi  luris 
principio  et  fine  uno.  A  glance  at  its  plan  is  sufficient  to  show 
that,  in  form  at  least,  it  is  dominated  by  distinctly  theological 
notions.  Accepting  the  definition  of  the  Institutes,  "  iurispru- 
dentia  est  divinarum  atque  humanarum  rerum  notitia,"  Vico 
divides  his  subject  into  three  parts  :  i.e.,  the  study  (1)  of  the 
origin,  (2)  of  the  course,  (3)  of  the  subsistence  of  jurisprudence, 
and  undertakes  to  establish  the  three  propositions  : 

Origine,  omnes  a  Deo  provenire  ; 

Circulo,  ad  Deum  redire  omnes  ; 

Constantia,  in  Deo  omnes  constare. 

He  appears  to  have  believed  that  this  distribution  of  the  sub- 
ject-matter by  reference  to  a  theological  conception  was  an 
integral  part  of  the  system  he  taught,  but  it  may  safely  be 
assumed  that  such  is  not  the  case,  and  that  the  scheme  is  but  an 
instance  of  the  author's  tendency  to  subdivide  in  an  arbitrary 
and  needless  manner.  The  clearness  of  the  work  is  also  marred 
by  the  enunciation  of  principles  or  disjointed  lemmata,  the 


V1CO  365 

presence  of  which  renders  the  legal  and  moral  principles  treated 
of  unnecessarily  obscure.  If  these  peculiarities  be  overlooked, 
the  doctrine  of  Vico  in  the  De  uno  may  be  more  readily  explained. 
The  fundamental  position  may  be  expressed  in  the  proposition 
that  the  science  of  law  is  based  both  on  reason  and  on  authority, 
or,  hi  other  words,  on  philosophy  and  history.  Philosophy 
brings  to  light  the  laws  to  which  human  nature  is  subject,  and 
accounts  for  the  causes  of  events.  History  bears  witness  to 
events,  teaches  the  order  in  which  they  succeed,  and  the  circum- 
stances in  which  they  may  be  expected  to  recur.  Universal 
jurisprudence  is  thus  formed  of  three  parts — "  coalescit  expartibus 
tribus,  philosophic^,  historic/,  el  quadam  propria  arte  iuris  ad  facta 
accommodandi."  A  proof  of  the  proposition  is  sought  by  Vico 
in  the  history  of  law  in  Greece  and  Rome.  The  principles  of  law 
had,  among  the  Greeks,  been  of  considerable  importance  in  philo- 
sophical discussions.  The  branch  of  philosophy  which  politics 
treat  of  grew  out  of  legal  studies.  It  was  intimately  connected 
with  ethics,  and  this  again  finds  its  principles  in  metaphysics, 
the  fountain-head  of  pure  wisdom — hominis  consummatrix. 
Besides  these  teachers  of  law  as  an  abstract  science,  there  were, 
at  Athens,  a  body  of  practitioners  (Trpay/jutTitcoi)  who,  confining 
their  attention  to  pure  practice,  were  acquainted  only  with 
recorded  law  and  decided  cases.  The  whole  body  of  Attic  law 
was  familiar  to  them,  but  their  knowledge  was  unreasoned  and 
contemptible.  The  inevitable  result  of  this  separation  of  theory 
from  practice  was  that  law  as  an  art,  iuris  ars,  did  not  exist  in 
Greece.  The  rational  application  of  broad  legal  principles  to  the 
facts  of  particular  cases  was  impossible  alike  both  to  the  pure 
theorist  and  to  the  pragmatist.  When  the  question  at  issue  was 
mainly  one  of  fact,  it  was  argued  according  to  the  precepts  of 
rhetoric ;  where  one  of  law,  the  pleader,  without  regard  to  the 
righteousness  of  the  cause,  invoked  indiscriminately  the  written 
law  or  the  precepts  of  philosophy. 

The  Romans  show  us  an  entirely  different  state  of  things.  The 
free  spirit  of  the  people  had  engendered  broad  views  and  a  love 
of  their  country  which  placed  the  public  welfare  before  private 
interest.  For  the  Roman,  experience  in  a  succession  of  respon- 
sible offices  took  the  place  of  theoretical  training  ;  the  worship 
of  the  gods  that  of  meteiphysic.  The  Patrician  magistrate  was, 
at  once,  legislator  and  jurisconsult.  Schooled  in  civic  wisdom, 
acquainted  with  the  underlying  reason  for  the  law  and  accus- 


366  Vico 

tomed  to  determine  its  application,  the  early  citizen  of  the  metro- 
polis of  law  combined  in  himself  the  philosopher,  the  pragmatist 
and  the  Greek  rhetorician.  This  state  of  things  did  not  long 
endure.  Before  the  first  Punic  war  Tiberius  Coruncanius  began 
to  give  systematic  legal  instruction  to  the  Patrician  youth.  His 
teaching  marked  the  inception  of  Roman  jurisprudence  doctrina 
propria  Eomanorum.  This  early  form  of  instruction,  intended 
as  a  preparation  for  service  in  the  magistrature,  dealt  with  law 
from  the  political  point  of  view  (ratio  civilis).  It  was  not  till  the 
Empire  had  spread  civilization  over  the  world,  that  law,  tinged 
with  humanitarianism,  and  by  adopting  the  principles  of  equity, 
became  truly  iusti  atque  iniusti  scientia.  A  third  source  of  law, 
independent  of  history  and  pure  philosophy,  is  to  be  found  in  the 
etymological  study  of  legal  terminology.  The  jurisconsult  was,  hi 
Rome,  the  eminently  wise  man,  familiar  with  all  things,  Divine 
and  human.  For  us,  however,  in  the  opinion  of  Vico,  Roman 
law  is  not  final — we  are  furnished  with  another  guide  in  Reason. 
The  idea  of  our  power,  our  knowledge  and  our  wishes  (Nosse, 
vette,  posse),  guided  by  the  light  of  revelation,  affords  us  the  prin- 
cipal means  of  attaining  to  universal  justice.  It  is  the  human  con- 
science reflecting  Divine  light,  that  is  represented  in  all  legislation 
which  really  embodies  the  rules  of  immutable  justice.  In  order  to 
attain  perfection  the  true  jurisconsult  must,  therefore,  keep  before 
him  the  principles  of  philosophy  as  well  as  the  positive  law  which 
they  underlie,  and  he  must,  above  all,  strive,  by  a  study  of  events 
and  monuments,  to  discover  the  origin  of  legal  principles  and  the 
manner  in  which  the  various  ages  have  regarded  them.  This 
combined  method  is  the  true  key  to  jurisprudence  ;  it  avoids  the 
endless  contradictions  to  which  all  other  methods  have  led,  and 
it  alone  affords  a  means  of  reconciling  Christian  precept  with  the 
systems  of  antiquity.  Man  is  a  fallen  creature,  he  possesses  in 
his  degraded  condition  vestiges  of  the  perfection  which  was  his 
before  the  Fall.  By  striving  to  win  back  some  of  the  good  he 
has  lost  and  overcoming  mere  animal  instincts,  much  may  still 
be  retrieved  with  the  Divine  assistance. 

These  semi-theological  conceptions  do  not  greatly  influence  the 
subsequent  argument  of  the  De  uno,  which  proceeds  in  a  singu- 
larly modern  spirit. 

The  problem  of  the  origin  of  society  and  social  polity  is  to  us 
less  attractive  than  it  was  to  the  writers  of  the  seventeenth  and 
eighteenth  centuries.  It  was  a  prevalent  belief  among  them  that, 


vico  367 

should  they  succeed  in  discovering  the  origin  of  society,  its 
formative  influences  and  earliest  tendencies,  that  knowledge 
would  be  of  the  very  greatest  value,  since  it  would  enable  them 
to  lay  down  the  rules  of  the  science  of  government,  and  perhaps 
to  predict  the  ultimate  end  to  which  mankind  may  aspire. 
Although  we  no  longer  believe  that  results  so  far-reaching  can 
be  thus  obtained,  and  therefore  attach  far  less  importance  to 
these  studies,  yet  when  we  reflect  that,  with  all  our  modern 
progress,  our  ideas  on  the  origin  of  society  are  as  dim  and  may 
turn  out  to  possess  no  more  finality  than  the  theories  of  Hobbes 
or  of  Rousseau,  it  is  natural  that  we  should  examine  the  earlier 
speculations  and  compare  them,  with  interest,  to  our  own. 

The  modern  question  as  to  whether  society  was  first  formed 
by  voluntary  aggregation  of  many  families  or  by  the  natural 
expansion  of  one,  may  be  said  to  be  the  political  aspect  of  the 
problem  as  to  what  were  the  motives  which  actuated  its  mem- 
bers. To  the  latter  Vico  attempted  to  give  the  answer.  Man 
in  a  state  of  isolation  and  ignorance  suffers  from  a  twofold  need. 
On  the  one  hand  his  feeble  mind  requires  the  support  of  those  of 
his  fellow-creatures  in  order  to  arrive  by  intercourse  at  some 
modicum  of  truth.  On  the  other  his  fragile  body  cannot,  alone, 
hope  to  struggle  successfully  against  the  blind  forces  of  nature. 
The  first  of  these  requirements  supplies  the  spiritual  basis  of 
society  ;  the  second  its  material  foundation.  If  this  supposition 
be  sound,  society  may  be  defined  as  an  exchange  of  utilities — 
utilitatum  communio — mental  and  material,  and  the  function  of 
law  will  be  to  secure  justice  in  such  exchange.  To  the  Roman 
precept  Bono,  fide  agito  we  may  add  as  a  necessary  corollary  Ex 
vero  vivito.  Society,  aided  by  the  legislator,  aims  thus  at  our 
perfection,  moral  and  material,  and  it  is  necessarily  governed  in 
its  aim  by  these  two  precepts.  They  are  inseparably  correlated  ; 
for  who  can  be  honest  in  his  dealings  if  he  be  morally  depraved, 
or  morally  honest  if  his  acts  be  unjust  ?  That  reason  alone  bears 
out  these  principles  is  shown  by  their  expression  in  the  proecepta 
iuris  of  the  Institutes.  To  attain  to  a  complete  justice,  it  is 
necessary,  however,  according  to  Vico,  to  superimpose  on  these 
purely  rational  rules  the  Christian  law  of  charity— in  omnes 
hominis  prce  Deo  charitatem.  To  injure  no  one  is  not  complete 
justice  ;  its  natural  complement  is  service  of  our  neighbour,  in 
act  and  thought.  To  give  our  neighbour  his  due  is  but  a  partial 
fulfilment  of  the  law,  if  that  due  does  not  comprise  all  things 


368  V100 

necessary  for  the  perfection  of  his  existence.  These  principles 
led  Vico  to  enunciate  two  rules  which  may  at  first  sight  seem 
inadmissible.  The  first — Lex  summce  necessitatis — sanctions  in 
case  of  urgent  necessity  an  inherent  right  in  every  man  to  preserve 
his  life  by  taking  the  property  of  another  even  against  the  will 
of  the  owner.  By  the  second — Lex  innocuce  utUitatis — every 
man  has  the  right  to  use  and  even  to  abuse  the  property  of 
another,  if  he  profits  by  so  doing  and  the  owner  thereby  suffer 
no  loss.  As  rules  of  everyday  conduct  these  rights  might  no 
doubt  be  open  to  serious  question.  M.  Franck1  has  pointed  out 
that  the  second  rule  is  inconsistent  with  the  current  definition  of 
ownership,  and  would  in  many  cases  imply  the  right  to  do  vio- 
lence to  an  owner's  wishes.  With  regard  to  the  first  he  objects 
that  such  a  right  would  destroy  the  virtue  of  charitable  acts, 
which  would  no  longer  be  voluntary,  and  that  no  limit  can  be 
assigned  to  the  necessity  which  would  justify  spoliation.  Such 
objections  lose  force  when  it  is  remembered  that  Vice's  object  is 
to  determine  the  conditions  of  a  pure  distributive  justice,  putting 
aside,  for  the  purposes  of  his  argument,  all  considerations  of  mere 
expediency  or  practicability.  The  conception  of  ownership  we 
have  formed  is  the  result  of  a  vast  historical  experience,  and  is, 
like  all  positive  law,  moulded  by  the  exigencies  of  social  life. 
It  may  not,  therefore,  perhaps  be  theoretically  perfect.  The 
Christian  obligation  of  charity,  again,  is  not  dependent  on  chari- 
able  acts  being  unsanctioned  by  the  law  of  the  land,  nor  is  it 
any  ground  against  necessity  as  a  justification  for  despoiling 
another  of  his  property,  to  point  out  that  the  necessity  may  be 
hard  to  establish,  as  might  be  alleged  against  the  justifiability 
of  self-defence.  From  the  eloquent  judgment  of  Lord  Coleridge 
in  jR.  v.  Dudley  (L.R.,  14  Q.B.D.,  273),  it  appears  that  even  the 
question  whether  necessity  may  justify  the  taking  of  another's 
life — his  most  precious  possession — is  one  (at  least  morally 
speaking)  not  entirely  removed  from  discussion. 

Since  the  end  of  society  is  an  exchange  of  utilities  in  a  just 
proportion,  and  the  function  of  law  is  to  secure  that  this  pro- 
portion be  maintained,  two  broad  divisions  of  legislation  may  be 
naturally  distinguished.  Equalizing  justice  (iustitia  cequatrix), 
comprising  the  law  intended  to  maintain  equality  of  rights 
between  persons  subject  to  the  same  duties,  embraces  the  whole 
civil  law.  Distributive  justice  (in  distributionibus  regnat)  deter- 

1  Journal  des  Savants,  Mars  et  Avril,  1801. 


vico  369 

mines  the  apportionment  of  rewards  and  punishments.     It  is 
grouped  together  as  penal  law,   and  its  principles  stated  as 
follows.    The  sanction  provided  by  nature  for  the  safeguard  of 
rights  lies  in  the  moral  conscience  and  the  pangs  of  remorse  to 
which  she  has  subjected  their  violator.    Habitual  depravity 
lessens,  however,  the  acuteness  of  these  pangs,  and  it  is  for  the 
purpose  of  inflicting  on  the  wrong-doer  the  necessary  supplement 
of  suffering  that  the  legislator  subjects  him  to  bodily  pain  (ipsis 
est  ferme  peccandi  necessitas).     Other  motives  for  punishment 
would  degenerate  to  mere  vengeance  or  tyranny.     Keeping  the 
basis  of  penalty  before  us,  it  becomes  clear  that  the  legislator 
would  be  unjustified  in  punishing  acts  which  are  harmful  to  the 
wrong-doer  alone,  the  "  reflective  offences  "  of  Bentham.     Con- 
science is  here  a  sufficient  deterrent.     He  must  likewise  make  his 
aim  coincide  with  that  of  conscience,  which  is  the  amendment 
of  the  culprit,  and  where  that  amendment  is  hopeless  his  duty  is 
confined  to  safeguarding  society ;  he  cannot  gratify  its  desires 
of  vengeance.     "  The  least  excess,"  says  Bentham,  "  consecrated 
to  the  sole  object  of  vengeance  would  be  pure  e vil . "    The  doctrine 
is  as  old  as  the  Gorgias  of  Plato. 

Civil  law  is,  according  to  Vico,  comprised  in  three  divisions  : 
"Dominium,"  or  the  right  of  dealing  with  things  ;  "Libertas," 
that  of  living  unimpeded  ;  "Tutela,"  that  of  protecting  oneself 
or  one's  interests.  Of  these  rights  the  civil  personality  is  com- 
posed, and  they  are  each  of  them  an  essential  part  of  it.  If  our 
existence  be  hindered  we  cannot  enjoy  ownership  ;  if  we  be 
deprived  of  our  property  our  liberty  is  useless.  If  we  be  unable 
to  protect  our  liberty  and  our  property  they  are  both  of  them 
equally  illusory.  The  liberty  of  man  is  part  of  his  constitution. 
The  natural  exercise  of  his  faculties,  his  will  and  intelligence,  or 
the  moral  instinct  which  tells  him  recta  agere  est  necesse,  vivere 
non  est  necesse,  demands  that  he  shall  be  free  to  act.  The  admis- 
sion of  liberty  as  an  innate  prerogative  of  man  logically  entails 
the  recognition  of  property.  The  body  is  meant  to  obey  the 
mind,  for  it  cannot  act  alone  ;  and  in  the  same  way  material 
things  fall  naturally  under  the  dominion  of  reason,  the  supreme 
arbiter  of  things  created.  "Tutela,"  the  right  of  protection,  is 
equally  well  founded.  The  senses  protect  the  body,  reason 
protects  the  rashness  of  instinct,  and  the  self-conscious  soul 
guards  her  own  sanctuary.  The  duty  of  positive  civil  law  is  to 
protect  these  three  rights  and  to  obviate  their  abuse.  When  we 

25 


370  VICO 

turn  from  theory  to  the  world  of  history,  we,  in  fact,  find  that 
the  principles  thus  rationally  deduced  have  been  slowly  evolved 
from  age  to  age,  and,  under  the  pressure  of  outward  circumstance, 
found  expression  in  the  existing  social  order.  Where  these 
principles  have  been  misunderstood  and  a  false  growth  has  con- 
sequently taken  place,  the  institutions  evolved  contain  in  them- 
selves the  germ  of  dissolution  ;  they  must  inevitably  pass  away. 

It  will  be  seen  from  the  foregoing  sketch  of  Vico's  system  of 
origins  that  the  theory  of  the  Social  Compact  is  left  entirely  out 
of  account.  That  theory,  which,  although  its  ultimate  develop- 
ment in  Spinoza  and  Rousseau  was  due  largely  to  the  desire  to 
supply  a  theoretical  apology  for  resistance  to  the  abuse  of  power, 
was  based  in  its  origin  on  a  political  truism  which  Vico  would 
doubtless  not  have  hesitated  to  admit.  That  Society  implies 
the  consent  of  at  least  a  majority  of  its  members  cannot  be 
reasonably  gainsaid.  Aristotle's  notion  of  the  State  as  a 
Koivwvia  implies  his  recognition  of  the  fact,  and  it  is  equally 
involved  in  the  transition  from  the  status  ex  lege  of  the  De  Uno  or 
the  stato  ferino  of  the  Scienza  Nuova  to  the  most  rudimentary 
form  of  a  common  life.  Vico,  however,  was  not  led  astray,  as 
were  so  many  authors  of  the  age,  by  the  attractive  simplicity  of 
a  theory  which  remained  plausible  only  if  all  but  one  of  the 
integrating  influences  to  which  primitive  man  was  subject  were 
overlooked.  Whilst  recognizing  the  fact  that  the  wish  to  form 
a  community  must  be  supposed  present  in  the  minds  of  its 
founders,  however  barbarous,  he  did  not  admit  that  such  wish 
and  consequent  consent  were  the  determining  influences. 

Man  in  his  primeval  condition  was,  according  to  Vico,  far  lower 
than  the  angels  ;  he  bore  a  far  closer  likeness  to  the  post-simian 
species  of  Darwin.  The  whole  picture  presented  to  us  in  the  De 
Uno  and  in  the  Scienza  Nuova  bears,  in  fact,  a  striking  resemblance 
to  that  drawn  by  Huxley  and  the  evolutionist  school.  The 
primitive  family  of  Vico  is,  broadly  speaking,  the  cyclopean 
family  of  modern  sociology. 

The  substance  of  the  De  Constantia  Jurisprudentice,ihe  sequel  to 
the  De  Uno,  is  incorporated  in  the  Scienza  nuova.  It  will  there- 
fore be  sufficient  and  convenient  to  refer  to  it  incidentally  in 
speaking  of  the  latter  work.  Our  remarks  will  be  confined  to  a 
succinct  statement  of  the  general  scope  of  Vico's  principal  treatise 
and  of  some  of  the  more  important  questions  arising  out  of  it. 

The  New  Science  is  an  extremely  difficult  book  to  analyze. 


vico  371 

Encumbered  with  strange  and  often  grotesque  illustrations  of 
historical  doctrines,  uncouth  in  language,  eccentric  in  turns  of 
thought,  and,  in  most  editions,  badly  printed,  the  magnum  opus 
of  Vico  presents  an  aspect  so  forbidding  that  nothing  less  than 
originality  of  the  highest  order  can  explain  its  survival  and 
frequent  republication.  Its  formal  defects  are  attributable,  in 
part,  to  the  speed  with  which  Vico  wrote — he  prepared  the 
second  edition  in  four  months — and  in  part  also  to  his  disregard 
for  purity  of  language.  In  many  letters  are  found  expressions 
of  his  contempt  for  lexicons  and  current  works  of  reference.  His 
method  seems  to  have  been  to  meditate  long  and  carefully  and 
then  to  hurriedly  commit  the  result  to  paper,  under  the  pressure 
of  an  intellectual  fervour  which  a  contemporary  describes  as 
akin  to  the  furor  poeticus.  Corrections,  when  he  made  them, 
related  invariably  to  the  substance  of  his  work,  and  rendered  it 
more  obscure  than  before. 

Vico  and  History. — In  spite  of  the  scholastic  stamp  of  Vico's 
philosophy,  some  of  his  modern  admirers  have  claimed  him  to  be  a 
positivist.  Professor  de  Luca,  in  his  Dinamica  delle  Forze  sociali, 
has  a  chapter  entitled  "  Vico  e  Comte,"  and  an  introduction  to  a 
recent  reprint  of  the  Scienza  nuova  is  devoted  to  showing  its  per- 
sistent positivism.  The  points  in  which  our  author  is  supposed 
to  betray  his  positivist  tendencies  might  be  more  aptly  indicated 
as  proof  of  the  modernity  of  his  temper.  Prominent  among  them 
is  his  historical  scepticism,  which  raised  a  storm  of  protest  among 
his  contemporaries.  Although  Vico  had  found  the  methodic  doubt 
of  Descartes  repugnant,  and  had  devoted  a  considerable  part  of 
his  dialectical  skill  to  showing  its  absurdity  in  philosophy,  in 
his  historical  studies  the  preliminary  rejection  of  traditional 
beliefs  is  so  absolute  that  he  might  be  thought  a  disciple  of  the 
French  philosopher.  No  writer  prior  to  Vico  had  attempted  to 
question  the  general  credibility  of  early  history  and  tradition  to 
an  extent  at  all  comparable  with  that  to  which  he  went  in  the 
Scienza  nuova.  There  had,  of  course,  been  critical  treatises  on 
special  documents  or  dealing  with  the  traditions  of  particular 
nations. 

The  Declamatio  of  Lorenzo  Valla  successfully  exposed  the 
forgery  of  Constantino's  donation.  The  efforts  of  Gerard  Jan 
Vossius  and  Pico  della  Mirandola  to  unite  in  a  harmonious  design 
Christianity  and  the  fables  of  classical  antiquity  may,  perhaps, 
imply  an  intelligent  distrust  in  the  surface  meaning  of  history. 


372  vice 

Later,  Heinrich  Loriti  began  a  series  of  attacks  on  the  accepted 
accounts  of  early  Rome  which  the  Dutch  historians  of  the  seven- 
teenth century  vigorously  continued.  But  the  radical  criticism 
of  Vico  went  much  farther.  The  result  of  his  views  was  to 
sweep  away  the  entire  body  of  traditions  which  had  been  accepted 
as  the  true  account  of  human  affairs  anterior  to  the  Peloponnesian 
and  the  second  Punic  Wars.  "  Thucydides,"  he  says,  "  informs 
us  that,  up  to  his  father's  time,  the  Greeks  knew  nothing  about 
their  own  past.  What,  then,  could  they  know  of  the  past  of 
the  Barbarians,  they  who,  alone,  have  made  it  known  to  us,  and 
what  shall  we  think  of  the  past  of  the  Romans,  a  people  wholly 
preoccupied  with  agriculture  and  war,  when  Thucydides  makes 
us  this  confession  in  the  name  of  the  Greeks  who  so  early  became 
philosophers  ?" 

"  Livy,"  he  adds,  declares  that  after  the  second  Punic  War, 
"  he  will  write  Roman  history  with  greater  certainty,"  but  even 
then  that  historian  is  in  doubt  as  to  many  important  matters. 
"All  that  has  come  down  to  us  concerning  Pagan  antiquity 
previous  to  the  tunes  we  have  indicated  is  uncertainty  and 
obscurity.  We  do  not  therefore  hesitate  to  boldly  enter  into  it 
as  into  an  unowned  field  which  belongs  to  the  first  occupier 
(res  nuLliiLS  quce  occupanti  conceduntur).  We  shall  not  fear  to 
infringe  the  rights  of  anyone  when,  in  treating  of  these  matters, 
we  shall  not  agree  with  or  shall  even  be  opposed  to,  the  opinions 
hitherto  accepted  as  to  the  origins  of  civilization."  These  bold 
declarations  forcibly  recall  the  proposal  of  Descartes  to  empty 
the  mental  "apple-basket."  It  is,  of  course,  true  that  the 
critical  attitude  of  Vico  towards  the  Bible  was  in  marked  contrast 
with  the  freedom  he  displayed  in  dealing  with  profane  writings. 
Most  of  his  apologists,  and  especially  his  countrymen,  have 
attributed  this  singular  conservatism  to  political  or  other  ulterior 
motives.  Signor  Pio  Viazzi,  for  instance,  writes  that  Vico's 
profession  of  orthodoxy  "  ha  quasi  sempre  tutta  la  forma  di  un 
voler  parere  pid  che  altro."  Passages  in  this  Scienza  nuova 
have  been  pointed  out  in  which  Vico  appears  to  recognize  the 
artificial  character  of  the  hard-and-fast  distinction  he  professed 
to  see  between  the  history  of  the  Hebrews  and  that  of  other 
peoples.  When  he  says  that  "  poetry  was  the  earliest  method  of 
expression  among  all  peoples,  including  the  Jews,"  or  when  he 
seems  to  entertain  a  doubt  as  to  whether  the  Jews  of  the  age  of 
Abraham  practised  human  sacrifice,  these  apologists  see  the  half- 


vlco  373 

suppressed  wish  of  a  free-thinker  to  submit  the  Bible  to  the  rules 
of  literary  criticism.    A  simpler,  and  surely  sounder,  explanation 
of  Vice's  peculiar  attitude  may  be  found  in  the  milieu  in  which 
he  wrote.    When  the  Pentateuch  was  still  regarded  as  the  oldest 
book  in  the  world,  when  the  spade  of  the  excavator  and  the 
patience  of  the  decipherer  had  not  yet  revealed  the  fact  that  the 
prophets  and  even  Abraham  lived  in  a  world  permeated  with 
literary  culture,  when  nothing  was  known  of  the  progress  in  art 
and  mechanical  science  made  by  the  ancient  empires  of  the  East, 
the  high  literary  development,  the  philosophic  conceptions,  and 
the  moral  enlightenment  embodied  in  the  Old  Testament  were 
sufficient,  apart  from  the  sanctions  of  ecclesiastical  authority,  to 
cause  the  history  of  the  Jews  to  be  looked  upon  as  entirely 
sui  generis,  having  nothing  in  common  with  that  of  the  Gentile 
world.     The  eighteenth  century  had,  of  course,  its  Bayles  and 
its  Voltaires  who  were  prepared  to  gibe  at  the  inconsistencies  of 
Scripture  and  to  attack  with  ironical  reverence  the  "  respectable 
prejudices  "  of  their  times.     But  the  object  of  such  writers  was 
political  rather  than  literary.    Like  Candide,  they  felt  that, 
primarily,  they  must  cultivate  their  garden  and  help  to  pluck 
out  the  weeds  with  which  society  was  overgrown  rather  than  con- 
fine their  efforts  to  the  humble  objects  of  mere  scholarship. 
When  they  attacked  the  accepted  historical  interpretation  of  the 
Bible,  it  was  because  they,  however  mistakenly,  regarded  religion 
as  the  enemy  of  social  reform,  and  not  from  any  desire  to  furnish, 
in  the  light  of  advanced  historical  knowledge,  a  more  acceptable 
exegesis.     Hence   the   crudeness   of    Voltaire   and   the   Deistic 
writers.    Their  criticism  had  no  permanent  value.     It  was  not 
intended  and  could  not  therefore  assist  to  form  the  essentially 
modern  conception  of  the  Scriptures  with  which  we  now  are  so 
familiar  that  it  is  hard  to  realize  the  standpoint  of  an  age  which 
was  ignorant  of  their  composite  character,  and  which  held  it 
little  short  of  blasphemous  to  admit  that  they  had  undergone 
change  and  revision. 

The  position  of  Vico  towards  the  Bible  was  natural  and  almost 
unavoidable,  because  no  rational  view  of  it  had  as  yet  been  sug- 
gested which  a  Christian  might  be  expected  to  adopt.  The  very 
fact  that  Vico  "  shelved  "  the  questions  of  Biblical  interpretation, 
and  did  not  attempt  to  furnish  any  explanation  of  Hebrew  tra- 
dition, may,  perhaps,  indicate  some  suspicion  on  his  part  that  the 
current  method  of  dealing  with  the  Bible  was  unsatisfactory. 


374  vico 

He  might  readily  have  attempted  an  explanation  on  the  teleo- 
logical  lines  of  the  Discours  sur  I'Histoire  universelle,  or  at  least 
have  proposed  a  method  by  which  his  philosophy  of  history  might 
be  "  reconciled "  with  the  coexistence  of  a  separate  Hebrew 
dispensation.  This  he  did  not  do.  His  attention  was  absorbed 
by  the  vast  fields  of  speculation  in  which  he  traced  the  story  of 
the  savage  races  which  had  not  yet  learnt  to  distinguish  good 
from  evil,  and  who  were  outside  the  process  of  Divine  selection 
described  in  the  Book  of  Genesis.  It  is  not  unreasonable  to 
attribute  to  a  man  of  his  extraordinary  historical  intuition 
some  glimmering  of  the  true  scope  of  the  Bible  and  its  historical 
value.  The  passages  which  are  quoted  to  show  that  Vico  did 
not  really  believe  in  the  special  character  of  the  Bible  ought  more 
correctly  to  be  regarded  as  manifestations  of  the  independence 
of  his  thought  and  of  the  genius  which,  in  many  respects,  made 
him  so  superior  to  the  prejudices  of  his  time.  If  the  exclusion 
of  sacred  history  from  his  plan  led  to  contradiction,  he  was,  we 
may  believe,  unconscious  of  the  fact.  His  scientific  instinct, 
if  the  expression  be  allowable,  enabled  him  to  put  aside  when 
necessary  assumptions  and  prejudices  which  might  have  hindered 
his  general  conclusions. 

"  Der  Mensch  in  seinem  dunkeln  Drange. 
1st  sich  des  rechten  Weges  wohl  bewusst." 

The  historical  scepticism  of  Vico,  like  the  methodic  doubt  of 
Descartes,  was  merely  a  clearing  of  the  ground  for  the  construction 
of  his  positive  system.  The  conviction  underlying  the  New 
Science  was,  in  the  words  of  Dr.  Klemm,  the  most  recent  ex- 
positor of  Vico,  that  "  it  is  possible  to  represent  the  life  of  peoples 
in  accordance  with  scientific  principles,  or  to  establish  a  general 
science  of  peoples  "  ( Volkerwissenschaft).  To  create  this  science 
Vico  thought,  however,  that  the  Cartesian  contempt  for  erudition 
and  its  endeavours  to  build  all  knowledge  on  the  facts  presented 
by  consciousness  were  quite  inadequate.  The  science  of  peoples 
must  avail  itself  of  two  distinct  lines  of  investigation.  It  must 
rely  on  philosophy  for  absolute  rational  knowledge,  for  all  truths 
which  can  be  deduced  from  pure  reason,  but  it  cannot  make 
fruitful  use  of  the  results  of  speculation  unless  at  the  same  time 
it  is  acquainted  with  philology.  By  the  latter  term  Vico  under- 
stood all  knowledge  other  than  that  derived  from  philosophy. 
History,  literature,  general  experience,  "la  cognizione  delle 
lingue  e  dei  fatti  dei  popoli,"  compose  philology,  and  are  material 


Vico  375 

for  systematic  study.  By  them  the  data  of  deductive  reasoning 
are  to  be  checked,  and  they  hi  turn  are  to  receive  a  new  interpre- 
tation hi  the  light  of  rational  principles.  Too  great  reliance  on 
abstract  ideas  on  the  one  hand,  and  the  lack  of  a  co-ordinating 
power  on  the  other,  were  dangers  which  Vico  believed  could  be 
obviated  by  his  combined  method  of  study.  It  is  probable  that 
the  conception  of  this  method  was  derived  from  his  doctrine  that 
history  is  the  unfolding  of  the  eternal  idea  of  God.  All  external 
events  lie,  he  believed,  inevitably  determined,  in  the  Divine 
mind,  and  might  be  equally  well  known  by  us  without  observing 
their  occurrence  in  time  and  space  were  we  sure  that  our  intelli- 
gence did  not  deceive  us  by  allowing  us  to  mistake  figments  of 
our  own  brains  for  a  revelation  of  the  designs  of  Providence. 

It  would  be  useless  and  difficult  to  describe  the  peculiarities 
and  inconsistencies  of  this  semi-Platonic  doctrine.  Suffice  it  to 
say  that  the  notion  of  human  development  being  an  inevitable 
outcome  of  human  nature — one  of  Vico's  most  fruitful  ideas — 
and  the  metaphysical  doctrine  of  the  pre-«xistent  Divine  plan 
are  constantly  clashing  in  the  Scienza  nuova,  so  that  the  author 
is  often  driven  to  speak  of  Providence  as  if  he  meant  merely  the 
conception  of  Providence  present  in  the  thought  of  individual 
men.  In  other  words,  he  sacrifices  unconsciously  the  idea  he 
adapted  from  the  schoolmen  in  favour  of  his  own  original  theory. 
Providence,  instead  of  remaining  outside  the  laws  of  social 
growth  and  imposing  itself  on  the  world  of  fact,  became  part  of 
a  human  process  influencing  mankind  from  within.  The  varia- 
tions in  Vico's  view  of  Providence  afford  good  proof  that,  although 
he  wore  so  many  of  philosophy's  cast-off  garments,  he  had 
begun  in  reality  to  think  in  a  modern  way. 

In  a  note  entitled  Tavola  delle  discoverte  generali,  Vico  summed 
up  the  main  points  which  he  claimed  to  have  established  in  the 
Scienza  nuova.  One  of  them  was  "  Una  storia  ideale  eterna  com- 
mune a  tutte  le  nazioni."  This  idea  of  a  "  storia  ideale  "  as 
understood  by  Vico  was  that  on  which  sociology  is  based.  Soci- 
ology, it  may  be  said,  is,  in  a  sense,  an  attempt  to  write  history 
briefly — more  briefly  than  any  record  of  events  would  permit. 
In  analyzing  recorded  facts,  in  observing  existent  social  phe- 
nomena, in  classifying  the  results  and  attempting  to  state  the 
conditions  of  social  stability  and  social  progress,  sociology  is  but 
applying  the  method  common  to  all  the  sciences,  and,  in  pro- 
portion as  the  general  formulas  it  lays  down  are  found  to  cover 


376  vico 

facts  hitherto  unobserved,  approaches  more  nearly  to  the  con- 
dition of  an  exact  science.    To' know  that  historical  phenomena 
are  never  of  a  casual  character,  that  general  propositions  may  be 
deduced  from  them  when  rightly  understood,  is  of  fundamental 
importance    for   establishing    a   theory   of   human    action.     If 
sociology  is  possible — a  supposition  denied  by  many — if  the  gap 
in  the  scientific  Welibild  where  man  stands,  with  his  complex 
motives  and  actions,  is  to  be  filled  up,  it  must  be  admitted  that 
the  conception  of  the  succession  of  historical  events  as  governed 
by  fixed  laws  was  one  of  the  greatest  thoughts  which  man  has 
ever  had.     Vico  was  the  first  who  gave  clear  expression  to  this 
thought.     By   "  storia   eterna "   he   meant   an  explanation   of 
history  by  reference  to  universal  historical  laws.    This  was  the 
central  purpose  of  his  great  work,  and  he  was  justified  in  calling 
his  science  "  new  "  as  fully  as  any  discoverer  was  ever  justified 
in  claiming  originality.    Darwin's  theories  were  none  the  less 
new  because  the  work  of  Lamarck  and  Saint  Hilaire  had  helped 
towards  their  formation,  nor  is  Lavoisier  denied  the  merit  of  his 
chemical  discoveries  because  Priestley  had  contributed  to  them. 
We  may  similarly  recognize  that  Plato's  Republic,  the  De  Civi- 
tate  Dei  of  Augustine,  the  Discorsi  of  MachiaveUi,  and  possibly, 
Bodin  and  Campanella,  helped  in  various  ways  towards  the 
formation  of  Vico's  conception  of  social  law.    The  city  depicted 
hi  the  Republic,  of  which  "  perhaps  in  heaven  there  is  laid  up  a 
pattern  for  him  who  wishes  to  behold  it,"  Vico  did  not  seek  for, 
because  he  recognized  that  it  was  confined  to  the  region  of  specu- 
lation, but  with  the  thought  of  such  a  city  in  his  mind,  he  was 
not  improbably  led  by  his  belief  in  a  Providence  inherent  in  the 
earthly  order  of  things  to  suppose  that  the  apparent  confusion 
and  incoherence  of  history  might  in  reality  conceal  the  outline 
of  an  unknown  Divine  scheme.     The  frequent  reference  to  Augus- 
tine found  in  the  Scienza  nuova  renders  it  likely  that  the  De 
Civitate  had  a  considerable  influence  on  Vico's  historical  specula- 
tions.   No  doubt  the  Providence  of  Vico  was  far  removed  from 
that  which  "  rules  and  governs  all  earthly  events,  but  of  which 
we  are  not  to  question  the  justice,  though  we  may  not  see  its 
motives."    The  narrow  dualism  of  the  gloriosissima  civitas  and 
the  civitas  terrena  was  implicitly  rejected  by  Vico  when,  as  we 
have  seen,  he  refused  to  enter  into  the  conventional  distinction 
between  Jewish  and  Gentile  history  ;  the  attempt  to  fit  pre- 
conceived theological  notions  into  historical  generalizations  did 


vico  377 

not  attract  him.  But  these  facts  do  not  render  it  less  sure  that 
Vico's  theory  was  helped  by  Augustine's  conception  of  the  Divine 
direction  of  human  destiny  and  by  his  arguments  against  the 
Greek  necessity  and  fortune  as  explanations  of  history.  Machia- 
velli's  doctrine  of  the  essential  depravity  of  human  nature  left 
no  trace  in  Vico's  speculations  ;  the  local  bias  everywhere  trace- 
able in  The  Prince,  the  advocacy  which  contributed  so  largely 
to  the  oecumenical  fame  of  the  Florentine  politicist,  have  no 
reflection  in  the  scientific  detachment  of  the  New  Science.  But 
when  MachiaveUi  writes,  "  All  things  in  the  world,  at  all  periods, 
have  an  essential  correspondence  with  past  times,"  when  he 
systematically  employs  historical  parallelism  in  the  arguments 
of  the  Discorsi,  he  approaches  appreciably  to  Vico's  conception 
of  historical  law,  and,  in  attempting  to  base  his  investigation  on 
the  common  congenital  character  of  man,  seems  to  have  partly 
seen  the  necessity  insisted  on  by  Vico,  of  establishing  the  psycho- 
logical foundation  of  historical  science. 

It  is  interesting,  in  noticing  writers  whose  influence  on  the 
Scienza  nuova  is  apparent,  to  refer  to  a  predecessor  in  the  scien- 
tific study  of  history  who,  although  he  cannot  have  been  known 
to  Vico,  seems  to  have  anticipated  him  to  a  remarkable  extent 
by  more  than  three  centuries.  Ibn  Khaldoun,  whose  ancestors 
had  taken  part  in  the  Moorish  conquest  of  Spain,  died  at  Cairo 
in  1406.  His  passion  for  political  intrigue  made  his  life  one  of 
vicissitude.  Sent  on  a  diplomatic  mission  by  the  ruler  of  Tilim- 
saan,  he  tarried  for  years  on  the  road  in  order  to  write  his 
Prolegomena,  the  general  part  of  The  Book  of  Examples  (Kitab-el- 
Ibar).  The  prose  of  this  work  is  of  the  kind  Matthew  Arnold 
called  Asiatic,  and  it  is  marred  by  lack  of  balance,  but  it  contains 
a  philosophy  of  the  history  of  the  Moslem  peoples  far  in  advance 
of  anything  in  European  literature  prior  to  Vico. 

"History,"  says  Ibn  Khaldoun,  "has  for  its  object  to  treat 
of  the  formation  of  social  groups,  of  the  conditions  to  which 
mankind  is  exposed,  of  the  refinement  of  customs,  of  family  and 
tribal  feelings,  of  the  idea  of  national  superiority  which  leads  to 
the  founding  of  empire,  and,  finally,  of  the  changes  which  the 
very  nature  of  things  impresses  on  the  character  of  society.  It 
is  a  self-contained  science  having  for  object  civilization.  .  .  .  The 
part  in  which  we  deal  with  this  topic  contains  a  new  science 
remarkable  alike  for  originality  and  utility."  These  passages 
and  such  headings  as  "Of  the  differences  of  races,  and  of  the 


378  VicO 

countries  which  they  inhabit  ";  "  Of  the  forms  of  government  of 
the  Khalifate  and  of  such  forms  as  are  essential  in  every  state," 
are  sufficient  to  show  how  advanced  were  the  tenets  of  the  Arab 
writer. 

With  his  conception  of  social  law  clearly  in  view,  Vico  pro- 
ceeded to  jleal  with  problems  which  may  be  divided  into  two 
groups.  In  the  first  he  attempted  a  critique  of  historical  ma- 
terials and  an  inquiry  into  the  causes,  the  laws,  and  the  ends  of 
social  development.  In  the  second,  he  inquired  into  the  psychic 
factors  which  are  discoverable  in  all  communities  and  have 
everywhere  a  common  value — e.g.,  language,  myth,  and  custom. 
Few  modern  writers  would  approve  of  the  importance  Vico  gives 
to  the  study  of  language  and  myth  for  the  purposes  of  social 
science.  They  are  too  concerned  with  that  aspect  of  change 
which  Giddings  characteristically  described  in  the  dictum,  "  Pro- 
gress is  at  bottom  an  economic  phenomenon,"  to  give  prominence 
to  a  philosophy  of  mental  development.  The  modern  ethical 
school  of  sociology  is,  nevertheless,  following  the  example  of 
Vico  in  its  attempt  to  work  out  a  theory  of  evolution  from  egoism 
to  altruism,  and  it  is,  moreover,  a  fairly  common  proceeding 
in  modern  social  science  to  try  to  explain  a  phenomenon — 
e.g.,  interest — by  the  history  of  the  word  by  which  it  is  signified. 

"  Man,"  says  Vico  in  the  Scienza  nuova,  "  has  certainly  made 
the  civil  world."  Providence,  immanent,  as  it  were,  in  the 
human  race,  co-operated  in  the  making,  but,  as  has  been  seen, 
the  "  Provvedenza  "  of  Vico  bore  little  resemblance  to  the  Provi- 
dence of  Bossuet's  Discours.  It  is,  in  the  Scienza  nuova,  a  deduc- 
tion and  not  a  postulate,  a  generalization  from  the  ideas  found, 
by  Vico,  to  underlie  the  whole  of  human  history.  When  man 
emerged  out  of  the  darkness  into  which  he  was  plunged  after  the 
flood,  he  bore  upon  him  all  the  traces  of  the  brutishness  which  his 
sins  had  developed  hi  him.  Without  family,  without  form  of 
speech — mutum  et  turpe  pecus — a  prey  to  wild  impulse  and  illu- 
sion, the  shaggy  forest-dweller  was  led  towards  better  things 
under  the  influence  of  two  main  factors — Force  and  Reason. 
At  first  the  only  right  was  that  of  the  strong.  The  physically 
superior  compelled  the  weak  to  labour  for  them,  to  hew  wood 
and  draw  water.  Physical  superiority  it  was,  too,  which  led  to 
the  suppression  of  promiscuous  sexual  intercourse  ;  the  strong 
man  selected  his  mate  and  jealously  guarded  her  from  his  weaker 
fellows.  This  was  the  earliest  form  of  marriage,  and  with 


vico  379 

marriage  the  family  came  into  existence,  children  of  sure  parentage 
to  whom  their  father  naturally  hoped  to  transmit  the  fruits  of 
his  labour,  his  slaves  and  his  lands.  For  Vico,  as  for  Maine, 
"  the  power  of  the  strong  man  was  the  principal  formative  cause 
of  social  progress."  Inheritance  implied  division  of  land  and  the 
absolute  power  of  its  owner,  dominium.  But  mere  force,  although 
so  potent  an  agent,  could  not  achieve  the  rudiments  of  civilization. 
Man's  mind  is  moved  to  some  sort  of  supernatural  belief  in  all 
tunes  and  places.  Vico  is  not  consistent  in  explaining  the  origin 
of  this  belief.  At  times  it  arises,  he  says,  from  mere  fear  of 
natural  forces  ;  in  terror  of  the  thunder — "  fu  fantasticata  una 
divinata  in  cielo  che  fulminasse."  At  others,  the  conception 
arises  from  man's  realization  of  his  own  littleness  or  from  con- 
science, "  coscienza  del'  malfatto."  But  whatever  its  cause,  the 
belief  became  a  means  by  which  man  was  civilized.  Even  when 
his  perversity  had  led  him  to  adore  false  gods,  he,  in  his  ignor- 
ance, attributed  human  passions  to  them,  sought  to  know  their 
will  by  auguries  and  to  pacify  them  by  prayer  and  sacrifice.  His 
whole  life  became  associated  with  the  supernatural ;  marriage 
became  a  sacrament ;  wills  were  placed  under  the  protection  of 
the  gods ;  the  priest  and  the  legislator  were  identified.  It  was 
because,  in  the  beginning,  the  family,  legal  rights,  and  virtue 
itself  were  thus  founded  on  religion  that  Vico  called  his  system 
"  una  teologia  civile  ragionata."  The  persons  who  resorted  to 
the  practices  of  religion  were,  naturally  enough,  those  who  had 
profited  by  the  exercise  of  superior  strength  and  skill.  He  who 
already  possessed  a  dwelling,  a  wife  and  a  family,  was  the  first 
to  build  an  altar  or  a  sacred  grove  where  the  unseen  power  might 
be  propitiated,  where  the  firstlings  of  his  flock  were  brought  as 
an  offering.  "  I  Padri  come  piii  sperimentati  dovettero  essere 
i  Sapienti :  come  piii  degni  i  Sacerdoti :  come  posti  in  una  somma 
potesta  ...  i  Be  delle  loro  famiglie."  Worldly  wisdom,  super- 
natural relations,  and  absolute  temporal  authority  were  the 
rightful  prerogatives  of  the  paterfamilias  ;  his  despotic  power 
was  beneficent  in  its  results.  The  savage  passions  of  the  group 
he  held  in  subjection  were  curbed  and  mollified.  After  death  his 
services  were  recognized,  and  he  became  the  hero  and  the  demi- 
god. The  medieval  view  of  pagan  mythology,  according  to 
which  its  gods  were  baseless  myths,  or,  at  best,  incarnations  of 
evil  spirits,  was  false  and  shallow.  The  whole  world  of  ancient 
fable  is  imbued  with  meaning  and  filled  with  real  men.  "  We 


380  vice 

have  in  it  the  civil  history  of  the  earliest  peoples,"  material  from 
which  to  fashion  a  true  conception  of  the  mind  and  history  of 
primitive  man,  whose  mythopceic  faculty  is  everywhere  evident. 
The  method  by  which  he  proposed  to  utilize  mythology  is,  to  a 
great  extent,  approved  and  followed  by  recent  writers,  but  the 
fantastic  interpretation  of  specific  myths  which  we  find  in  the 
Scienza  nuova  is  liable  to  hide  its  substantial  soundness.  His 
attempts  to  show  that  the  twelve  great  gods  of  Greece  represent 
as  many  epochs  of  history,  or  that  Juno,  for  instance,  symbolized 
the  history  of  marriage,  are  to  us,  of  course,  absurd,  and  we  are 
surprised,  when  we  have  read  it,  to  find  him,  nevertheless,  as 
fully  aware  as  any  modern  writer  of  the  "  automorphism  "  of 
primitive  races  :  "  L'uomo  ignorante,  cio  che  non  sa,  estima  della 
sua  propria  natura." 

Early  languages  were,  Vico  believed,  to  a  great  extent  imitative 
in  origin.  Their  subsequent  development  was  brought  about  by 
an  unconscious  process,  and  their  diversity  he  accounted  for  as 
follows  :  "  Come  certamente  i  popoli  per  la  diversita  dei  climi, 
han  sortio  varie  diverse  nature  onde  son  usciti  tanti  costumi ; 
cosi  dalle  loro  diverse  nature  et  costumi  sono  nate  altrettante 
diverse  lingue  ;  talche  per  la  medesima  diversita  delle  loro  nature, 
siccome  han  guardato  le  stesse  utilita  o  necessita  delle  vita  umana 
con  aspetti  diversi,  cosi  son  uscite  tante  lingue  diverse."  The 
same  terrors  which  had  led  to  the  formation  of  the  earliest 
religious  belief  caused  man  to  give  vent  to  his  feelings  by  simple 
monosyllabic  sounds.  These,  his  first  words,  produced  by  a 
simple  reflex  action,  gradually  came  to  express  all  the  simple 
feelings — grief,  joy,  expectation — by  an  unconscious  process. 
"  Spiegavano  le  loro  passioni  urlando  brontolando  fremendo  : 
spinti  da  violentissime  passione."  On  this  basis  of  pure  inter- 
jection was  begun  the  building  of  ever-increasing  verbal  com- 
plexities. Proper  names  passed  into  common  nouns  and  these 
into  adjectives  signifying  abstract  qualities  :  "  Una  nazione  di 
mente  cortissima  non  sa  appellare  una  proprieta  astratta,  ossia 
in  genere,  .  .  .  ed  ove  vogliano  dire  diverse  proprieta  di  due  corpi 
di  specie  diverse,  eglino  uniranno  in  una  idea  essi  corpi."  The 
onomatopoetic  character  of  great  part  of  early  speech  was  recog- 
nized by  Aristotle.  An  objection  to  the  doctrine  is  raised  by 
Max  Muller  and  other  modern  philologists.  Before  man  can  form 
any  notion  of  an  external  thing  he  must  perceive  the  impression 
it  makes  upon  him,  and  this  impression  it  is  which  he  seeks  to 


vico  381 

express  by  a  mere  cry  and  not  by  any  sort  of  imitative  sound. 
But  it  is  argued,  on  the  other  hand,  that  since  impression  must 
reflect  some  quality  inherent  in  the  object  that  causes  it,  the 
word  expressing  the  impression  must  also,  to  some  extent,  repre- 
sent the  external  cause.  Hence  Vico  was  not  perhaps  wrong  in 
giving  the  importance  he  did  to  onomatopoeia.  Poetry  and 
song  preceded  prose.  "  Men,  at  first,  feel  without  remarking  the 
things  felt ;  then  they  remark  them  but  in  the  confused  manner 
of  a  wild  and  primitive  soul ;  in  the  end,  enlightened  by  pure 
reason,  they  begin  to  reflect."  Poetry,  the  mental  vehicle  of 
feeling,  is  earliest  everywhere.  When  the  new  languages  of 
Europe  were  forming,  the  poets  were,  once  more,  the  earliest  to 
make  use  of  them.  The  early  poets  were  creatures  of  such  high 
imagination  that  they  believed  their  own  fancies,  "Fingunt 
simul  creduntque."  This  is  the  reason  why  so  much  of  the 
earliest  poetry  conveys  a  strong  impression  to  us.  These  views 
of  Vico  are  sufficient  to  show  the  direction  which  his  thoughts 
on  language  took.  Although,  as  we  have  pointed  out,  it  was 
impossible  for  him  to  arrive  at  any  but  very  rudimentary  notions 
as  to  the  origin  of  language,  he  succeeded,  here  as  elsewhere,  in 
divining  many  truths  only  recently  verified.  His  greatest  merit 
consists  in  his  having  seen  the  importance  of  language  as  the 
earliest  available  storehouse  of  human  history  and  in  the  way  in 
which  he  approached  its  problems. 

Herodotus  attributed  to  the  Egyptians  the  division  of  universal 
history  into  three  periods  :  "  la  prima  degli  Dei,  la  seconda  degli 
Eroi,  la  terza  degli  Uomini."  Vico  accepted  this  division,  and 
to  prove  that  the  periods  were  contemporaneous  in  all  countries 
he  constructed  a  very  arbitrary  chronological  table.  The  divine 
age,  that  of  the  primitive  family,  is  described,  as  we  have  noticed, 
in  the  Scienza  nuova  with  the  assistance  of  the  conceptions  of 
Roman  family  law.  The  twelve  tables  merely  registered  a  de 
facto  despotism  when  they  edicted  :  "  Patrifamilias  ius  vitae 
necisque  in  liberos  esto."  The  name  "  family  "  would  have  been 
a  misnomer  in  its  origin  unless  we  suppose  it  derived  from  famuli 
or  the  servants  of  the  first  patres  familias.  The  transition  to  the 
second  or  heroic  age  was  begun  when  the  weak  and  the  perse- 
cuted began  to  repair  to  the  arcs  of  the  strong,  and  were  taken 
under  their  protection.  The  virtues  developed  in  these  famuli — • 
docility  and  submission — were  just  those  most  needed  for  the 
future  state  in  the  governed  classes.  In  process  of  time  these 


382  vico 

famuli  increased  in  numbers  and  began  to  acquire  confidence  in 
themselves.  They  forgot  the  old  dread  in  which  their  masters 
had  been  formerly  held,  and  no  longer  entertained  feelings  of 
gratitude  for  protection  from  dangers  which  they  had  not  per- 
sonally experienced.  Finally,  resentment  against  their  enslave- 
ment reached  the  point  of  revolt,  and  they  boldly  claimed  recog- 
nition of  their  rights  and  guarantees  of  future  good  treatment. 
But  resistance,  again,  reacting  on  the  masters,  compelled  them 
to  combine  and  to  select  a  chief  under  whom  they  might  success- 
fully oppose  their  rebellious  dependants.  This  is  the  broad  out- 
line of  the  earliest  inception  of  the  state .  In  it  are  no  longer  found 
only  family  groups,  but  also  opposing  parties,  class  interest  and, 
when  a  modus  vivendi  was  established,  also  a  rudimentary  con- 
stitution whereby  the  striving  classes  secured  the  observance  of 
the  conditions  of  peace.  In  the  forces  which  militated  to  create 
this  new  social  unit,  not  by  the  action  of  any  external  agency,  but, 
as  he  said,  "  ipsis  dictantibus  rebus,"  Vico  saw  the  working  of 
that  Providence  which  is,  at  the  same  time,  present  in  the  human 
spirit,  and,  in  a  sense,  identified  with  it,  securing  the  conformity 
of  social  development  to  the  basal  laws  of  humanity.  Its  agency 
is  manifest  in  what  he  called  the  "  common  sense  of  nations,"  the 
spontaneous  expression  of  their  common  nature,  "  formed  with- 
out reflection,  felt  by  all  the  members  of  a  class  or  of  a  people,  or 
by  all  the  human  race."  The  importance  of  the  "senso  com- 
mune "  appears  also  in  the  De  Uno,  where  it  is  said  to  be  "  com- 
munem  tuae  civitatis  .  .  .  prudentiam,  qua  id  sequaris  aut  fugias, 
quod  omnes  tui  cives  .  .  .  sentiunt  sequendum  vel  fugiendum." 
The  notion  of  a  common  human  nature  is  of  capital  importance 
in  the  Scienza  nuova.  It  was,  of  course,  in  itself  by  no  means 
novel,  but  what  had  formerly  been  a  mere  expression  of  senti- 
ment became  imbued  by  Vico  with  a  new  significance  when  he 
used  it  to  explain  national  growth  and  decay.  Vico's  "  Volker- 
psychologische  Betrachtungen,"  says  Dr.  Klemm,  "sind  uns 
demnach  zunachst  ein  eigenartiger  Zug  seiner  Geschichtsphilo- 
sophie."  It  is,  none  the  less,  a  fact  that  our  author  was  the 
founder  of  Volkerpsychologie  in  the  sense  that  he  was  the  first  to 
see  the  basis  which  it  presupposes  and  to  attempt  the  generaliza- 
tions which  it  hopes  to  establish.  Some  of  the  dementi  or  general 
truth  of  mental  history  enunciated  by  Vico  may  be  mentioned 
incidentally  as  examples  of  his  sagacity  and  because  they  pervade 
the  New  Science  throughout : 


Vico  383 

"  Men  first  heed  what  is  necessary,  then  what  is  useful ;  they 
afterwards  seek  successively  comfort,  pleasure,  and  luxury.  In 
the  end  they  abuse  their  riches." 

"  The  character  of  peoples  is  first  cruel,  then  severe,  and,  in 
turn,  gentle,  good-natured,  inquisitive,  and  finally  dissolute." 

"  Governments  should  be  suited  to  the  nature  of  the  governed, 
hence  knowledge  of  the  people  is  the  best  acquirement  of  princes." 

"Customs  are  more  natural  and,  therefore,  more  powerful 
than  laws."  This  opinion  he  explains  more  fully  in  the  De  Uno, 
where  we  are  told  :  "  Both  customs  and  laws  (leges)  are  the  inter- 
pretation of  the  law  (jus)  of  nature  ;  but  customs  are  the  more 
secure  interpretation  since  they  are  approved  by  existent  circum- 
stances, and,  in  the  course  of  time,  they  disappear  therewith  : 
laws,  even  when  better  than  customs,  are  always  less  secure, 
since  they  emanate  from  the  changeable  will  of  a  legislator." 

The  early  state,  of  the  formation  of  which  we  have  seen  Vice's 
account,  was  of  an  aristocratic  type.  The  king  was  merely 
primus  inter  pares,  and  the  supreme  power  was  in  the  hands  of  the 
assembly  of  chiefs,  who  had,  as  it  were,  delegated  to  it  their 
separate  family  authority,  their  rights  of  private  vengeance,  and, 
at  the  same  time,  recognized  the  sovereign  prerogative  of  the 
public  power  to  deal  with  and,  if  necessary,  dispose  of  their  family 
patrimonies  when  the  interest  of  the  State  required.  This  view 
is  still,  in  general  outline,  that  of  modern  writers.  The  earliest 
state  of  which  we  have  any  knowledge  is,  according  to  Freeman, 
"  that  of  the  single  king  .  .  .  ruling  not  by  his  own  arbitrary  will, 
but  with  the  advice  of  a  council  of  chiefs."  The  diversity  of 
land  tenure  in  the  Middle  Ages  had  its  counterpart,  according  to 
Vico,  in  the  commonwealth  thus  constituted.  The  lands  granted 
by  the  chiefs  to  the  revolted  plebeians  were  held  by  a  base  or 
bonitary  tenure  similar  to  the  feuda  rustica  ;  those  of  the  chiefs 
themselves  by  quiritary  or  noble  tenure,  whilst  over  all  lands 
there  was  the  immanent  right  of  the  sovereign  assembly  of  chiefs 
equivalent  to  that  of  the  feudal  king.  The  policy  of  the  aris- 
tocracy was  conservative  because  their  interests  were  all  opposed 
to  change.  Class  privileges,  religious  rights,  family  authority, 
and  legislation  were  reserved  to  the  chiefs.  Such  a  condition  of 
things  could  not  endure.  The  plebeian  class,  compelled  to  pay 
a  tribute  to  the  patricians,  unable  to  transmit  their  land  to  their 
children  because  deprived  of  the  connubium  and  without  political 
power,  at  length  once  more  revolted  and  extorted  from  their 


384  vico 

oppressors  equality  before  the  law.  This  marked  the  end  of  the 
heroic  age.  The  system  of  law  and  custom  which  grew  out  of 
this  establishment  of  a  community  of  equals  was  better  adapted 
to  the  practical  needs  of  life,  but  the  popular  form  of  government 
inaugurated  was  soon  transformed  into  monarchy,  the  inevitable 
latest  type  of  constitution  in  the  recurring  cycle  of  history.  It 
will  be  convenient  here  to  mention  the  celebrated  theory  of  the 
"  corsi  e  recorsi."  From  the  nature  of  its  subject-matter,  social 
science  must  have  a  theory  to  explain  a  shifting  series  of  phe- 
nomena. Modern  writers  usually  represent  the  course  of  political 
change  as  one  of  progress  ;  Vico  preferred  the  astronomical  con- 
ception of  movement  in  an  orbit.  Not  content  to  apply  his 
theory  of  the  three  ages  to  the  history  of  antiquity,  and  persuaded 
of  its  universal  validity,  he  asserted  that  it  must  also  apply  to 
the  course  of  events  subsequent  to  the  fall  of  the  Roman  Empire. 
The  attempt  to  establish  this  thesis  was  unfortunate,  for  although 
he  did  not  assert  absolutely  complete  repetition  of  events  to  have 
taken  place — "  identita  in  sostanza  "  but  "  diversita  nei  modi 
lor'  di  spiegarsi " — yet  the  difficulties  of  the  argument  drove  him 
to  evident  sophisms  and  to  historically  baseless  assertions. 

The  poets  of  the  first  cycle  of  history  were,  he  said,  represented 
in  the  second  by  the  chroniclers  ;  there  was  among  the  barbarians 
who  peopled  Europe  a  similar  growth  of  languages,  the  same 
system  of  private  justice  and  family  religion.  The  heroic  age 
was  repeated  in  the  feudal  organization  where  the  vassal  held 
the  place  of  the  plebeian  and  did  homage  to  his  lord,  whom  he 
served  in  peace  and  war.  When  kingship  had  absorbed  the  feudal 
system  and  the  Roman  law  of  Justinian  had  spread  through 
Europe,  we  had  a  second  "  human  age,"  which  Vico  asserted  to 
be  most  highly  developed  hi  the  countries  of  his  time  where 
absolute  monarchy  was  established.  So  strong  was  his  desire  to 
generalize  this  idea  that  he  sought  to  apply  it  to  countries  of 
which  he  had  practically  no  knowledge,  and  even  asserted  Japan 
and  other  Eastern  countries  to  be  in  a  state  of  development 
similar  to  that'of  Rome  at  the  time  of  the  wars  against  Carthage. 
All  this  may  seem  fanciful,  but  although,  as  we  have  said,  the 
cyclical  theory  of  history  is  generally  abandoned,  there  are  not 
wanting  authors  who,  even  at  the' present  day,  assert  the  exist- 
ence of  a  law  not  unlike  that  of  the  recorsi  whereby  the  substantial 
identity  of  certain  social  transformations  with  those  of  former 
time  is  inevitably  determined.  Gomplowicz  is  notably  one  of 


vico  385 

them.  Although  there  are  passages  in  the  De  Uno  in  which  Vico 
appears  to  imply  that  monarchy  is  essentially  better  than  other 
forms  of  government — "  maxime  naturae  conveniens  " — it  may 
be  assumed  that  this  was  not  his  mature  opinion.  "  Where,"  he 
says  in  the  Scienza  nuova,  "  there  is  doubt  as  to  the  character  of 
a  people  they  will  be  best  governed  in  accordance  with  the  nature 
of  their  surroundings  (in  conformita  della  natura  dei  siti)  .  .  . 
hi  hot  and  stimulating  climates  after  a  manner  different  from 
that  suitable  to  cold  and  slow-blooded  peoples  (di  ottuso  in- 
gegno)."  Such  an  opinion  reminds  us  less  of  Aristotle's  academic 
order  of  merit  among  constitutions  than  of  the  vigorous  sentence 
of  Macaulay  :  "  A  man  who,  upon  abstract  principles,  pronounces 
a  constitution  to  be  good  without  an  exact  knowledge  of  the 
people  who  are  to  be  governed  by  it,  judges  as  absurdly  as  a  tailor 
who  should  measure  the  Belvidere  Apollo  for  the  clothes  of  all 
his  customers." 

Monarchy,  aristocracy,  and  democracy  are,  for  Vico,  all  of 
them  natural  forms  of  government :  each  belongs  to  one  or  more 
stages  of  civilization,  and  works  better  than  either  of  the  others 
when  a  nation  is  in  need  of  a  particular  set  of  advantages,  or  when 
its  mood  turns  in  certain  directions. 

The  justifiableness  of  all  governments  is  to  be  measured  by 
the  continuance  of  the  cause  to  which  they  owe  their  existence. 
So  long  as  the  best  and  wisest  men  are  secured  in  authority  the 
government  is  legitimate  and  its  transformation  wrongful,  how- 
ever more  symmetrical  or  more  plausible  its  substance  may 
appear.  When  the  patricians  alone  possessed  knowledge,  capa- 
bility, and  organization,  their  rule  was  reasonable.  When  the 
lower  classes  had  advanced  in  culture  and  their  rulers  no  longer 
had  any  real  superiority,  but  relied,  for  their  political  preponder- 
ance, on  inherited  privileges,  the  time  had  come  when  it  was 
right  and  proper  to  depose  them  from  power.  Absolute  monarchy 
is  equally  suitable  in  countries  like  those  of  the  East,  where  a  de- 
generate people  without  self-control,  weakened  by  sloth  and 
riches,  bows  the  more  readily  before  a  despot  because  he  arro- 
gates to  himself  a  discretion  they  are  too  dull  to  desire  or  too  effete 
to  exercise.  When  an  energetic  race  has  become  self-conscious 
and  developed  the  faculties  of  collective  action,  its  need  for  a 
more  popular  form  of  constitution,  in  which  its  best  elements 
may  find  room  to  expand,  is  as  real  as  the  physical  requirements 
of  the  individuals  who  compose  it.  The  trend  of  the  transfor- 

26 


386  vico 

mation  of  nations  is,  however,  in  its  essence  decadent.  The 
accumulation  of  riches,  the  refinement  of  social  life,  and  class 
discord  lead  to  the  weakening  of  the  body  politic.  At  times  the 
shattered  machinery  of  state  is  put  right  by  the  iron  hand  of  a 
Caesar.  But  if  the  machinery  is  past  repairing  nothing  can  save 
from  dissolution  and  anarchy  but  the  rude  repression  of  a  foreign 
conqueror.  The  subjection  of  one  people  by  another  is  justified 
and  beneficial  when  it  supplies  a  means  for  bringing  back  to  the 
vanquished  renewed  power  of  political  life  ;  "he  who  cannot 
govern  himself  must  allow  himself  to  be  governed  by  another  .  .  ., 
the  world  will  always  be  governed  by  those  whose  nature  is 
superior." 

The  sound  sense  of  these  opinions  is  mingled  with  the  de- 
spondent note  of  the  "  corsi  e  ricorsi,"  but,  as  may  be  seen,  the 
idea  of  the  recurrence  of  political  history  is  not  in  reality  essential 
to  the  spirit  of  the  Scienza  nuova,  nor  does  it  preclude  the  possi- 
bility of  real  and  permanent  progress.  The  strain  of  pessimism 
in  the  social  speculations  of  Vico  is  due  to  a  variety  of  causes. 
The  degradation  of  the  prehistoric  past  he  had  discovered,  the 
disruption  and  downfall  of  the  great  institutions  of  Rome  and 
of  Greece  which  he  had  studied,  the  lawlessness  of  the  Italy  in 
which  he  lived,  had  all  contributed  to  distemper  his  outlook  on 
the  future  and  to  prevent  him  from  duly  appreciating  the  signs 
of  serious  improvement.  When  he  expresses  faith  in  the  inten- 
tions of  Providence,  he  does  not  seem  to  base  it  on  the  lessons  his 
science  had  taught  him,  nor  to  realize  that  the  instinctive  belief 
in  progress  is,  in  his  own  phraseology,  part  of  the  senso  commune 
of  mankind,  or,  as  we  might  put  it,  one  of  the  best  guarantees  of 
its  attainment. 

A  French  critic  has  disparaged  the  political  studies  of  Vico, 
as  compared  with  those  of  Montesquieu,  on  the  ground  that  he 
confined  himself  so  exclusively  to  the  examination  of  the  institu- 
tions of  Rome.  It  is  true  that  the  author  of  U Esprit  des  Lois 
surveyed  a  larger  field,  but  his  attention  to  medieval  history 
is  due  rather  to  his  desire  to  indicate  the  right  means  of  reforming 
the  absolute  monarchy  of  France  than  to  his  having  a  wider 
grasp  of  his  subject  than  Vico. 

Just  as,  in  the  region  of  ideas,  the  study  of  politics  is  still 
influenced  by  the  speculations  of  Plato,  Isocrates,  and  Aristotle, 
political  facts  are  still  taken  by  modern  authors  very  largely 
from  the  records  of  Roman  history.  "  If  we  were  compelled  to 


vico  387 

set  aside  the  study  of  Roman  law,  our  inquiry  into  the  origin  of 
law  and  of  society  would,"  says  Maine,  "  be  at  once  reduced,  in 
great  part,  to  vague  conjecture."  The  best  proof  that  Vico 
did  not  commit  an  error  in  relying  too  much  on  Roman  history 
is  that  he  arrived  at  many  of  the  best  established  conclusions  of 
Montesquieu  and  later  writers.  He  might,  himself,  have 
attempted  to  justify  his  method  on  the  ground  of  the  essential 
sameness  of  political  evolution  in  all  nations,  a  result  of  the 
"  commune  natura  della  nazioni."  It  was,  of  course,  impossible 
for  him  to  have  any  exact  knowledge  of  the  primitive  indigenous 
races  of  Italy,  deprived,  as  he  was,  of  the  assistance  which  his 
successors  have  derived  from  philological  and  archaeological 
discoveries,  but  he  made  excellent  use  of  the  materials  at  his 
disposal.  The  importance  of  clearing  up  the  origin  and  phases 
of  the  struggle  between  plebeians  and  patricians  seems  to  have 
been  as  evident  to  him  as  to  Niebuhr  and  Mommsen.  In  his 
account  of  the  primitive  nature  of  the  gentes,  in  his  opinion  that 
the  clients  were,  at  first,  identical  with  the  plebeians,  he  is  in 
agreement  with  Mommsen,  although  Niebuhr  had  differed  from 
him.  Later  writers  have  not,  it  is  true,  agreed  to  the  complete 
dismissal  of  the  kings  as  pure  myths.  For  them  there  is  more 
reality  hi  the  Tarquins  than  in  Romulus  and  Numa,  but  dis- 
tinction is  a  characteristic  of  matured  thought,  and  ought  not 
to  be  expected  in  a  pioneer. 

One  of  the  most  remarkable  and  most  successful  of  Vico's 
Roman  researches  was  that  into  the  origin  of  the  "Twelve 
Tables."  His  conclusion  that  the  statements  of  Livy,  Pliny,  and 
other  classical  writers  were  not  to  be.  relied  upon,  that  the 
"  Tables  "  were  derived  from  the  customary  laws  of  the  peoples 
of  Latium,  and  not  from  Greek  legislators,  is  now  generally 
accepted.  Vico  gave  all  the  strongest  reasons  that  have  been 
advanced  to  disprove  the  existence  of  a  mission  to  Greece.  He 
showed  the  contradictions  in  the  story  and  pointed  out  that  the 
similarities  between  Attic  and  Roman  law  are  traceable  to  general 
causes  and  are  insufficient  to  warrant  belief  that  the  one  system 
borrowed  from  the  other.  But  these  conclusions,  remarkable 
as  they  may  be,  are  less  important  than  the  opening  of  new  fields 
of  discussion  to  which  the  controversies  which  arose  out  of  them 
immediately  led.  Throughout  Italy  opponents  and  partisans 
of  Vico  quickly  began  to  discuss  his  breach  with  tradition,  and 
inquiry  into  early  Roman  law  received  a  new  impetus  and  began 


388  VIOO 

to  take  the  direction  which  it  has  since  followed.  Freedom  of 
debate  was  thus  introduced  by  Vico  into  yet  another  branch  of 
study. 

In  the  second  edition  of  the  Scienza  nuova,  Vico  devoted  the 
third  book  to  "  the  discovery  of  the  true  Homer."  His  inquiry 
into  the  origin  of  the  Homeric  poems  has  importance  because  he 
regarded  it  as  a  model  of  the  proper  treatment  of  early  myths, 
and  from  the  fact  that  many  of  his  opinions  are  derived  from  the 
results  with  which  it  furnished  him.  Although  so  many  Greek 
scholars  readily  accept  Arnold's  advice  to  the  translator  "not 
to  go  into  the  vexed  question  of  Homer's  identity,"  it  is  still  a 
debated  point  whetherthe  poems  were  written,  or  rather  "  edited," 
by  a  single  author.  For  Vico,  the  true  Homer  was  the  Greek 
people  itself.  No  one  genius,  but  the  spirit  of  the  race  groping 
in  the  secular  struggle  for  national  light  and  life,  expressed  its 
pains  and  its  ideals  in  the  Iliad  and  the  Odyssey.  The  youthful 
exuberance  of  earliest  Hellas  appears  in  the  Iliad  with  its  Achilles, 
the  demigod  of  Force  and  virile  aggressiveness.  Odysseus  reveals 
no  longer  the  same  temper.  In  him  is  seen  another  order  of 
virtues.  Worldly  wisdom  and  stratagem  are  more  important  than 
bodily  strength,  Calypso  and  Circe  are  less  resistible.  The  second 
poem  is  unmistakably  the  product  of  a  later  age.  Both  are  the 
work  of  many  poets,  but  their  fundamental  difference  in  senti- 
ment and  style  shows  that  the  pieces  united  in  the  Iliad  belong 
to  a  more  remote  age.  The  "  true  Homer  "  is  thus  the  founder 
of  Hellenic  civilization,  he  is  its  first  philosopher  and  historian, 
for  early  history  was  necessarily  poetical,  and  poetry  was  but  an 
idealized  history. 

Friedrich  August  Wolf  refused  to  acknowledge  that  his 
Homeric  theory  had  been  anticipated  by  Vico.  "  AUes  hat  eher 
das  Ansehen  von  Visionen  "  was  hardly  a  fair  verdict  on  the  third 
book.  It  is,  in  fact,  on  Vico,  and  not  on  the  German  critic, 
that  we  should  look  as  the  originator  of  the  modern  view  of 
Homer  and  of  the  true  method  of  kindred  Qudlenkunde. 

The  preceding  sketch  of  the  principal  contents  of  the  Scienza 
nuova  may  help  to  show  that  it  was  one  of  the  most  remarkable 
books  of  the  eighteenth  century.  In  many  respects,  besides  the 
points  to  which  we  have  adverted,  Vico  foreshadowed  the  methods 
of  modern  writers.  He  saw,  for  instance,  that  valuable  assistance 
might  be  derived  from  biology  for  the  purposes  of  social  studies, 
and  illustrated  some  of  his  theories  by  reference  to  what  was 


vico  389 

then  known  of  savage  races.  But  so  much  in  his  great  work  was 
novel,  so  many  discoveries  had  to  be  made  before  his  ideas  could 
be  tested  and  arranged,  that  it  was  impossible  for  him  to  do  justice 
to  his  powers.  Tradition  has  it  that  Vico  sent  a  copy  of  the 
Scienza  nuova  to  Newton.  He  wished,  perhaps,  that  the  author 
of  the  Mathematical  Principles  might  know  that,  while  the  prin- 
ciple of  universal  gravitation  had  been  discovered  by  an  English- 
man, an  Italian  had  found  that  man  in  society,  no  less  than 
matter,  was  subject  to  the  action  of  ascertainable  laws.  Although 
Newton  could  not  admit  that  Vico's  "  laws  "  were  clear  or  un- 
exceptionable in  the  same  sense  as  the  uniformities  of  nature, 
he  may,  nevertheless,  have  recognized  that  the  attempt  of  Vico, 
abortive  though  it  might  be,  was  worthy  of  high  praise.  The 
progress  of  all  knowledge  is  slow,  and  the  saying  of  Wilhelm  von 
Humboldt  is  especially  true  of  social  science  :  "  Between  the 
conception  and  the  realization  of  an  idea  extend  vast  intervals 
of  space  and  time." 

A  complete  list  of  "  Vico  literature  "  may  be  seen  in  the 
Bibliografia  Vichiana,  by  Signer  B.  Croce  (Naples,  1904).  The 
best  and  latest  critique  of  Vico's  ideas  on  social  science  is  that  of 
Dr.  Otto  Klemm  in  his  O.  B.  Vico  als  Geschichtsphilosoph  und 
Vo'lkerpsycholog  (Leipzig,  1906).  An  excellent  general  view  of 
Vico  is  given  by  Professor  Flint  in  the  volume  on  Vico  in  Black- 
wood's  Philosophical  Classics. 


CORNELIUS  VAN  BYNKERSHOEK 

CORNELIUS  VAN  BYNKERSHOEK,  the  son  of  a  merchant,  was  born 
at  Middleburg  in  Zealand,  May  29,  1673.  He  was  educated  at 
the  University  of  Franeker,  in  Friesland,  where  he  first  studied 
the  humanities  and  then  the  Roman  law.  His  university  career 
was  a  distinguished  one  ;  and  he  received  the  highest  eulogy  from 
the  celebrated  professor  Huberus.  Afterwards  he  settled  at 
The  Hague,  became  an  advocate,  began  the  preparation  of  a 
work  on  Dutch  municipal  law,  Corpus  juris  Hollandici  et  Zelandici, 
and  published  various  dissertations  on  Roman  law.  In  1702 
appeared  a  study  on  the  L.  afywais  ix.  ff.  de  L.  Rhodia  de  jactu, 
immediately  followed  by  his  well-known  De  Dominio  Maris,  a 
work  on  the  sovereignty  of  the  sea,  dealing  with  many  important 
matters  which  had  during  the  two  preceding  centuries  aroused 
great  controversy.  Like  Grotius,  he  did  not  remain  at  the  bar. 
In  1703  he  was  appointed  a  judge  of  the  Supreme  Court  of  Hol- 
land, Zealand,  and  West  Friesland,  which  sat  at  The  Hague,  and 
in  1 724  became  the  President  of  that  Court.  His  duties  gave  him 
an  insight  into  the  nature  and  customs  of  interstatal  diplomatic 
relationships  and  a  thorough  knowledge  of  the  usages  and  prac- 
tical details  of  maritime  international  law.  In  1720  he  published 
his  work  on  the  rights  and  duties  of  ambassadors,  De  foro  lega- 
torum,  and  in  1737  Qucestiones  juris  publici,  of  which  the  first  part, 
De  rebus  bellicis,  considers  the  most  vital  questions  relating  to  the 
international  laws  and  customs  of  war.  He  died  April  16,  1743. 
An  unfinished  work,  Qucestiones  juris  privati,  appeared  after 
his  death.  His  various  writings,  which  had  attracted  a  good 
deal  of  attention,  and  had  already  begun  to  exercise  much  influ- 
ence on  the  legal  and  political  thought  of  the  time,  were  collected 
by  Vicat,  the  Professor  of  Jurisprudence  at  Lausanne,  and  pub- 
lished hi  1761  at  Geneva,  in  two  folio  volumes.  The  contents  of 
these  are  as  follows  :  Vol.  i. — (1)  Observationes  juris  Romani,  in 
eight  books,  matters  of  Roman  law,  some  considered  from  a  novel 
standpoint ;  (2)  Opuscula  varii  argumenti,  six  dissertations  on 

390 


CORNELIUS  VAN  BYNKERSHOEK 


CORNELIUS  VAN  BYNKERSHOEK  391 

Roman  jurisprudence  — e.g.,  on  de  origine  juris,  on  patria  potestas, 
etc. ;  (3)  Reply  to  certain  criticisms  of  the  preceding.  Vol.  ii. — 
(1)  Opera  minora,  six  dissertations,  of  which  the  fifth  is  De  Do- 
minio  Maris  and  the  sixth  Deforo  legatorum ;  (2)  Qumstiones  juris 
publici :  (a)  De  rebus  bellicis  (b)  De  rebus  varii  argumenti,  con- 
sidering a  variety  of  subjects  relative  to  the  law  of  nations  and 
to  Dutch  law — e.g.,  c.  iii.  to  c.  xii.  on  legal  position  of  ambassadors, 
c.  xxi.  salute  to  ships  of  war  at  sea  ;  (3)  Qucestiones  juris  privati, 
in  forty-eight  chapters,  divided  into  four  books — questions  of  civil 
law,  and  Dutch  municipal  law,  and  also  of  insurance  and  other 
matters  of  maritime  and  commercial  law. 

In  addition  to  these  published  treatises,  he  wrote  also  two 
other  works,  the  Corpus  juris  HoUandici  et  Zelandici,  and  Observa- 
tiones  tumultuarice,  notes  on  the  cases  which  had  come  before  him 
in  the  course  of  his  judicial  work ;  but,  in  accordance  with  his 
will,  these  writings  were  never  published. 

The  work  of  Bynkershoek  entitles  him  to  a  very  high  place 
among  international  jurists.  Indeed,  Hall1  says  he  "  was  the 
earliest  writer  of  real  importance,  and  few  of  his  successors  have 
equalled  him  in  sense  or  in  sight."  His  range  of  subjects  was  not 
so  wide  as  that  of  Grotius,  Pufendorf,  Wolf,  or  Vattel,  for  his 
intention  was  not  to  produce  a  systematic  work  on  the  law  of 
nations.  But  the  matters  he  took  up  for  examination  are  treated 
more  fully,  more  thoroughly,  with  stricter  logic,  and  with  more 
practical  wisdom  than  had  ever  been  done  before.  By  his  long 
professional  life  he  had  acquired  a  habit  of  concise  statement, 
terse  expression,  exact  analysis  of  complex  problems,  clearness 
of  explanation,  mastery  over  details,  and,  generally,  an  attitude 
of  impartiality  in  the  consideration  of  conflicting  claims.  On 
more  than  one  occasion  he  gives  a  deliberate  opinion,  directly 
opposed  to  the  practice  of  his  own  country ;  in  dealing,  for  ex- 
ample, with  the  question  of  neutral  goods  on  an  enemy's  vessel, 
he  is  against  the  Dutch  diplomacy  and  ordinances  by  means  of 
which  Holland  had  been  enriching  herself  :  and  this  attitude  is 
the  more  remarkable  as  he  occupied  a  prominent  judicial  position 
in  his  country's  service.  His  reasoning  is  constantly  emphasized 
by  apt  historical  and  legal  allusions,  though  he  carefully  avoids 
that  superfluous  display  of  learning2  which  frequently  interferes 

1  International  Law  (Oxford,  1904),  p.  583. 

2  Barbeyrac,  in  the  preface  to  his  translation  of  Deforo  legatorum,  says: 
"  Quand  on  est  si  riche  de  son  propre  fonds,  on  fait  tres  bien  de  laisser  a 
d'autres  le  soin  d'emprunter  ce  qui  a  et6  deja  fait." 


392  CORNELIUS  VAN  BYNKERSHOEK 

with  the  argument  and  obscures  the  principles  laid  down  by  his 
predecessors.  His  argument  is  charactered  by  the  practical 
readiness  and  directness  of  a  prudent  and  just  man  of  affairs, 
rather  than  by  the  circuitous  abstractions  of  academic  subtlety. 
His  convictions  are  supported  not  by  metaphysical  ingenuity, 
but  by  appealing  to  reason  and  common  sense  and  the  actual 
practice  of  his  time.  He  is  not  partial  to  visionary  theories,  and 
yet  does  not  apotheosise  mere  precedent.  He  takes  a  middle 
course,  supplementing  actual  practice  by  the  corrective  criterion 
of  reason,  and  interpreting  the  philosophical  demands  of  reason 
in  the  light  of  actual  facts,  the  necessities  of  daily  life,  the  in- 
evitable human  limitations,  and  the  allowances  to  be  made  for 
the  maintenance  of  harmonious  international  relationships.  One 
may  say  that  general  utility  is  his  determining  principle,  and  the 
positive  method  his  constant  guide,  the  application  of  which  is 
marked  by  a  sound  judgment,  an  active  intellect,  and  wide 
learning.1  Many  of  his  decisions  in  difficult  controverted  ques- 
tions— e.g.,  limits  of  territorial  sea — have  always  been  referred  to 
as  possessing  high  authority.2  His  writings  throughout  reflect  a 
certain  geniality  and  buoyancy  of  temperament ;  at  tunes  a  dry 
vein  of  humour  is  introduced,  as,  for  example,  when  he  refers  to 
the  many  disputes  arising  out  of  the  classification  of  tobacco  as 
contraband  of  war  :  nothing  substantial,  he  says,  really  resulted 
from  the  controversy — it  went  off  in  smoke  ("  in  fumum  abierat "). 
It  is,  of  course,  possible  to  discover  certain  faults  in  Bynkershoek's 
work,  such  as  a  certain  disposition  to  arrive  at  solutions,  by  his 
rigorous  logic,  of  diverse  matters  which  were  already  generally 
accepted,  and  a  tendency  to  disregard  the  growing  humanness 
in  the  attitude  of  the  time  towards  some  of  the  incidents  of 
warfare.3 

To  gain  a  better  understanding  of  his  doctrine,  it  is  well  to 

1  Hpinoccius,  in  his  edition  of  the  first  four  books  of  Observationes  juris 
liomani  (Loipsic,  1723),  says  of  him  ;  "  Admiratus  praccipue  viri  eruditissimi 
judicium  acre,  ingenium  solers,  juris  scientiam  inusitatam  ac  denique  incredi- 
bilem."  Cf.  also  the  opinion  of  Rivier  of  Bynkershoek's  position  as  a  civilian  : 
"  Auch  als  Civilist  muss  sein  Name  unter  den  ersten  der  grossen  Niederlandis- 
chen  Schule  genannt  werden,  neben  Huber,  J.  Voet  und  Noodt "  (F.  von 
Holtzendorff,  Handbuch  des  Volkerrechts,  Berlin,  1885,  Bd.  i.,  p.  459). 

"  Lord  Mansfield  spoke  extremely  well  of  Bynkershoek,  and  recom- 
mended especially  as  well  worth  reading  his  book  ot  prizes,  Qucestiones  juris 
publici  "  (2  Bur.  690,  in  margin). 

3  "  Des  theories  plus  douces,  plus  humaines,  ont  definitivemont  prevalu 
quand  le  magistrat  Tiollandais  s' attache  encore  a  proner  et  a  justifier  de 
ciures  ot  cruelles  maximes  "  (E.  Nys.  Le  Droit  International,  Bruxelles,  1904, 
I.,  p.  252). 


CORNELIUS   VAN  BYNKERSHOEK  393 

realize  his  position  relative  to  the  different  juristic  schools  which 
had  already  been  established  before  he  began  to  write.  In  the 
thirteenth  century  we  find  "1'ecole  canonico-internationaliste " l 
expounding  a  canonical  theory  of  the  law  of  war.  In  the  next 
two  centuries  civilians  take  a  wider  range  of  subjects  :  questions 
of  alliances  and  other  international  relationships,  questions 
relating  to  war,  and  the  ambassador.  Writings  increase  in  the 
sixteenth  century,  showing  substantial  progress  in  the  conception 
of  interstatal  regulations  ;  the  scope  is  further  widened,  maritime 
matters  and  the  rank  of  States  receive  more  systematic  treat- 
ment. The  two  most  important  writers  of  this  time,  the  Spanish 
Jesuit  Francis  Suarez2  and  Albericus  Gentilis,3  have  been  termed4 
the  precursors  of  Grotius.  The  De  jure  belli  ac  pads  (1625)  of 
Grotius  is  really  the  first  complete  and  methodical  treatise,  which 
soon  began  to  exercise  a  profound  influence  on  Europe.  It 
attempted  to  reconcile  to  some  extent  the  conception  of  ethical 
transcendentalism  with  that  of  the  practical  necessity  and  utility 
of  national  and  international  policy — that  is,  a  harmonizing  of 
the  jus  naturale  with  jus  voluntarium,  of  which  the  former  element 
is  considered  predominant  as  being  "dictatum  rectse  rationis,"5 
and  which  is  "  adeo  immutabile,  ut  ne  a  Deo  quidem  mutari 
queat."6  The  positive  or  voluntary  element  is  the  result  of  the 
manifestation  of  the  will  of  nations,  which  necessarily  varies 
according  to  time  and  circumstances,  but  yet  recognizes  the 
principle  of  utility.7  Such  consent  is  only  to  be  considered  as 
tacit  like  the  "  jus  non  scriptum  quod  consensus  facit "  of  the 
Roman  jurisconsults.  This  attitude  of  Grotius  compels  him  to 
have  constant  recourse  to  ancient  examples,  and  deliberately  to 
avoid  modern  illustrations.8 

Soon  afterwards,  the  work  of  Zouche  introduced  an  important 
modification  of  Grotius'  doctrine.  His  book,9  which  has  been 
called  the  first  manual  of  the  positive  law  of  nations,  lays  the  first 
foundation  of  the  English  School,  though  similar  tendencies  are 
already  found  in  Selden.10  With  Zouche,  the  voluntary  element, 
based  on  actual  usage,  is  the  more  important ;  and  again,  unlike 

1  P.  Leseur,  Introd.  a  un  cours  de  droit  inter,  pub.  (Paris,  1893),  p.  74. 

a  De  Legibus. 

3  De  Legationibus  (1583) ;  De  jure  belli  (1589). 

*  Rivier,  in  Holtzendorfi's  Handbuch,  op.  cit.,  I.  §  85. 

5  Bk.  L,  c.  1,  §  10.  6  Ibid.  7  Froleg.,  §  17. 

8  Cf.  his  own  avowal,  Proleg.,  §  58. 

9  Juris  et  judicii  Jecialis,  sive  juris  inter  gentes,  etc.  (1650). 

lj  Mare  Clausum  (1635) :  De  jure  naturali  et  gentium,  etc.  (1640). 


394  CORNELIUS  VAN  BYNKERSHOEK 

Grotius,  he  adduces  examples  and  facts  from  more  modern  times. 
The  jus  gentium  of  Grotius  becomes  with  Zouche  the  jus  inter 
gentes,  an  expression  which  prepared  the  way  for  Bentham's 
international  law. 

In  the  seventeenth  century  the  law  of  nations  begins  to  be 
more  widely  and  seriously  studied — e.g.,  hi  the  universities  of 
England,  Holland,  Germany,  and  Sweden.  Philosophical  writers 
add  a  new  note,  urging  a  philosophical  rather  than  a  juridical 
basis  for  interstatal  relationships.  Conflicting  tendencies  are 
manifested  ;  there  is  a  wavering  between  the  "  naturalism  "  of 
Grotius  and  the  "  positivism  "  of  Zouche,  or  a  desire  to  effect  a 
reconciliation.  Thus,  three  schools  had  evolved — the  "natur- 
alists," the  "  positivists,"  and  the  "  Grotians."  Pufendorf  is1  at 
the  head  of  the  first.  He  starts  from  Hobbes's  assertion,2  the 
germ  of  which  is  found  in  Grotius,  that  the  so-called  law  of  nations 
is  only  an  application  of  natural  law  to  State  relationships, 
maintains  that  the  positive  element  has  not  the  character  of  real 
law  apart  from  the  natural  law,  which  alone  possesses  the  legal 
sanction — "  quod  quidem  legis  proprie  dictae  vim  habeat,  quse 
gentes  tamquam  a  superiore  profecta  stringat."3  The  positivists 
at  first  held  that  the  positive  element  in  the  law  of  nations  is 
distinct  from  the  natural,  and  that  the  principles  underlying 
usages  and  treaties  possess  legal  force.  This  is  the  point  of  view 
of  Textor  and  Rachel,4  who  emphasize  the  positive  character  of 
"jus  plurium  liberarum  gentium,  pacto  sive  placito  expressim 
aut  tacite  initum,  quo  utilitatis  gratia  sibi  invicem  obligantur," 
and  urge  that  the  rules  arising  from  custom  constitute  a  jus 
gentium  commune,  obligatory  on  States  in  general,  whilst  those 
arising  from  treaties  form  a  jus  gentium  proprium,  obligatory  only 
on  the  contracting  parties.  The  Grotians  occupy  an  intermediate 
position  ;  they  retain  the  distinction  between  the  jus  naturale  and 
the  jus  voluntarium,  but,  unlike  Grotius,  they  consider  the  two 
of  equal  importance.  This  position  was  taken  up  in  the  seven- 
teenth and  eighteenth  centuries  by  a  large  number  of  writers,  of 
whom  Wolf5  and  Vattel6  are  the  most  important. 

The  course  of  events  in  Europe  after  the  Thirty  Years'  War 
tended,  in  many  respects,  to  emphasize  the  positive  aspect  of 

1  De  jure  naturae  et  gentium  (1672). 


2  De  cive  (ed.  1669),  c.  xiv.,  §  4,  p.  234. 

"  Op.  cit.,  IL,  c.  iii.,  §  22. 
InstUutiones  juris  naturae  et  gentium 
Droit  des  gens.     (Neuohatel,  1758). 


3  Op.  cit.,  IL,  c.  iii.,  §  22.  4  De  jure  naturae  et  gentium  (1676). 

5  Institutiones  juris  naturae  et  gentium  (1750). 


CORNELIUS  VAN  BYNKERSHOEK  395 

international  law.  The  principle  of  consent  acquired  greater 
influence  than  ever.  The  Peace  of  Westphalia  (1648)  was  itself 
the  first  great  act  of  European  diplomacy,  the  first  great  inter- 
national settlement  by  treaty.  The  meeting  of  the  Protestant 
Powers  at  Osnaburg  and  that  of  the  Catholic  Powers  at  Munster 
are  noteworthy  events  in  the  development  of  international  re- 
lationships ;  the  conception  of  European  equilibrium  became 
prominent,  and  the  independence  of  States  was  recognized.  The 
family  of  nations  began  to  acquire  somewhat  more  than  a 
chimerical  existence.  The  extension  of  maritime  intercourse 
gave  rise  to  usages  and  customs  which  gradually  assumed  the 
force  of  law,  and  diplomatic  methods  became  more  uniform  and 
systematized.  Congresses  were  held  more  frequently,  and  the 
rise  of  newspapers  helped  to  spread  the  conclusions  arrived  at. 
Memoirs  were  published,  and  collections  of  diplomatic  documents 
made.  In  France,  England,  and  Germany  collections  of  treaties 
were  issued .  Daniel  von  Nessel  in  1 6  90,  and  Leibnitz  in  1 6  93,  were 
then  led  to  bring  together  the  treaties  and  diplomatic  documents 
of  every  age  and  country.1  Writers  having  now  the  actual  facts 
before  them,  were  not  so  ready  to  indulge  in  metaphysical  abstrac- 
tions, but  were  more  disposed  to  draw  generalizations  from  the  mass 
of  data  furnished  by  the  arranged  catalogues  of  historical  events. 
Thus  it  became  clear  that  the  development  of  the  law  of  nations 
would  be  more  fully  understood  and  facilitated  if  time,  place,  and 
circumstance  be  taken  into  account,  and  the  force  of  treaties  and 
usage  with  their  express  or  implied  consent  recognized .  Grotius  and 
Leibnitz2  had  already  suggested  the  principle  of  utility,  Cumber- 
land3 had  emphasized  it,  it  was  admitted  by  nearly  all  subsequent 
writers,  and  later  it  became  the  basis  of  an  entire  political  philo- 
sophy, such  as  that  of  Bentham.  Now  the  modern  school  of 
jurists  recognizes,  as  is  pointed  out  by  Leseur,4  the  positive  value 
and  juridical  nature  of  rules  involved  in  treaties  and  customs, 
the  possibility  of  a  rational  regulation  of  interstatal  relationships, 
the  self-sufficiency  of  positive  law,  which  cannot  be  superseded, 
but  only  guided,  by  natural  law  (the  modern  meaning  of  which  is, 
however,  different  from  that  of  Grotius),  and  attaches  importance 
to  systematic  exposition  and  codification.  And  of  this  modern 
school  it  may  with  much  truth  be  said  that  Bynkershoek  is  the 

1  Codex  juris  gentium  diplomatictis  (1693) ;  and  a  supplement,  Mantissa 
codicis  juris  gentium  diplomatici  (1700). 

2  De  usu  actorum  publicorum,  §  13. 

3  De  legibus  naturae,  c.  v.,  §  1.  4  Op.  cit.,  p.  125. 


396  CORNELIUS  VAN  BYNKtfRSHOEK 

precursor.  "  On  peut  dire  de  Bynkershoek  et  de  G.  F.  de  Martens, 
qu'ils  sont  les  deux  precurseurs  de  1'ecole  moderne,  qu'ils  lui  ont 
donne  son  orientation." 1 

Bynkershoek  not  merely  lays  stress  on  the  positive  element, 
but  makes  it  almost  exclusively  the  basis  of  his  work.  The  will 
of  nations,  express  or  implied,  is  more  important  than  elaborate 
theories  of  natural  law,  though  there  is  in  every  system  a  place 
for  reasoned  criticism  (ratio)  serving  as  a  corrective.  He  empha- 
sizes the  avowal  of  Grotius  :  "  Rationes,  quaB  pro  se  quisque 
afferunt,  nihil  definite  concludunt,  quia  jus  hoc,  non  ut  jus 
naturale,  ex  certis  rationibus  certo  oritur,  sed  ex  voluntate 
gentium  modum  accipit."2  The  law  of  nations  is  derived  from 
usages  (usus)  traditions  and  customs  (mores),  and  the  express 
consent  of  States  (consensus  gentium]  as  manifested  in  treaties. 
Usage  is  also  based  on  the  evidence  of  agreements  and  ordinances 
(pacta  et  edicta).  In  the  absence  of  written  law,  the  existence  of 
long-established  universal  customs  and  practices  is  a  presumption 
of  their  legal  character,  and  of  their  binding  force  upon  all  men 
"si  .  .  ,  ratione  utantur " ;  and  in  this  manner  rights  are 
acquired  by  nations  and  obligations  imposed  on  them,  without 
which  peace  and  war,  commerce,  embassies  and  alliances  are 
meaningless.3  Express  consent  always  overrides  the  presump- 
tion of  tacit  consent.4  Certain  practices  of  other  States  may 
sometimes  be  contrary  to  our  own  advantage,  but  we  should 
regard  these  in  the  light  of  reason  and  not  from  personal  advantage 
or  otherwise ;  "  utilitas  equidem  nostra  non  admittit,  sed  de 
ratione,  non  de  utilitate,  omnis  disputatio  est."  6  The  rules  laid 
down  by  our  laws  and  treaties  are  not  alone  sufficient  to  establish 
the  law  of  nations ;  in  order  to  be  just  and  valid  they  must  be 
consonant  with  reason.  "Nulla  ullorum  hominum  auctoritas 
ibi  valet,  si  ratio  repugnet."6  Bynkershoek  tries  to  obtain  a 
harmonized  combination  of  reason  and  custom  as  the  whole  basis 
of  international  law.  This  is,  indeed,  the  truest  ideal ;  but  the 
difficulty  is  to  determine  precisely  what  is  the  real  significance 

1  Leseur,  op.  cit.,  p.  125. 

2  De  foro  legatorum,  c.  xvii.,  p.  147  (ed.  Vicat,  Opera  omnia,  2  vols.,  folio. 
Colonise,  Allobrogum,  1761). 

3  "...  Sine  quo  jure  nee  bellum  nee  pax  nee  foadera  nee  legationes  nee 
conimercia  intelliguntur  "  (Deforo  leg.,  c.  hi.,  Vicat,  II.,  125-6). 

"  Voluntas  oxpressa  tacitam  excludit  "  (IT.,  150). 

5  De  rebus  bellicis,  c.  ix.,  p.  179.     Of.  also  c.  xii.,  p.  186,  as  to  "  ratio, 
juris  gentium  magistra." 

6  Ad  lectorem,  ii.,  p.  161. 


CORNELIUS   VAN   BYNKERSHOEK  397 

of  reason.    Sometimes  ratio1  is  used  in  the  earlier  writers  as  it  is 
used  by  the  Roman  jurisconsults,  and  in  reference  to  the  Roman 
law  ;  at  other  times  it  is  used  in  the  sense  of  intuition,  or  of  moral 
consciousness,  or  of  common  sense.     As  employed  by  Bynkershoek, 
it  may  be  adequately  interpreted  as  signifying  the  logical  exercise 
of  common  sense.    He  recognizes  that  the  Roman  law,  though 
the  most  admirable  system  of  ancient  jurisprudence,  has  been 
too  much  resorted  to  for  the  extraction  of  analogies ;  old  codes, 
no  matter  how  systematically  and  with  what  elegantia  they  have 
been  constructed,  do  not  necessarily  fit  new  times  and  circum- 
stances.   The  consent  of  modern  States  is  far  more  important 
than  the  decisions  enshrined  in  the  Digest.     Modern  practice 
displaces    ancient    decrees.     Bynkershoek    quotes    Wicquefort : 
"  Les  regies  du  droit  public  ne  se  tirent  point  du  code,  ni  des 
digestes,  et  encore  moins  des  decrets  et  des  decretales,"2  and  again 
and  again  urges  that  the  modern  law  of  nations  depends  on  usage 
and  custom,  guided  by  reason.3     He  is  one  of  the  very  few  writers 
of  the  time  who  largely  confine  themselves  to  the  most,  recent 
historical  events,4  diplomatic  incidents,  decisions  of  Courts  or 
congresses,  and  declarations  in  the  latest  treaties.      Of  ah1  writers, 
he  is  the  first  to  make  extensive  use  of  the  materials  furnished 
by  treaties,  and  the  evidence  of  custom  offered  by  them.5  The 
decrees  of  the  States-General  are  constantly  referred  to  ;  indeed, 
his  chapter  on  blockade6  consists  largely  of  a  consideration  of 
and  commentary  on  the  Dutch  proclamation  relative  thereto. 
In  this  respect  his  treatment  is  analogous  to  that  of  such  English 
writers  as  Selden  and  Zouche,  who  had  directly  applied  the 
doctrines  of  the  English  Admiralty  to  controverted  maritime 
questions  of  European  importance — e.g.,  the  sovereignty  of  the 
narrow  seas,  and  the  legal  position  of  neutral  commerce.     New 
rules  embodied  hi  two  or  three  treaties  do  not  necessarily  become 

1  See  the  criticism,  by  Prof.  Westlake,  of  the  use  of  this  term  by  writers 
generally  (Chapters  on  the  Principles  of  International  Law,  Cambridge,  1894 
pp.  66-7). 

2  Deforo  legatorum,  c.  vii.,  II.,  132. 

3  Cf.  the  emphatic  passage,  ibid.,  II.,  132. 

4  "  Hanc  (auctoritatem)  malim  arcossere  ab  exemplis  hie  illic  frequentatis 
quam  a  testimonio  veteris  alicujus  poetae  vel  rhetoris  "  (Ad  lectorem,  Quccst. 
jur.  pub.).     This  passage  contains  also  a  sly  reference  to    the  practice  of 
Grotius,  from  whom  he  deliberately  differs. 

5  "  Usus  intelligitur  ex   perpetua  quodammodo   paciscendi  edicendique 
consuetudine.  .  .  .     Dixi,  ox  perpetua  quodammodo  consuetudine,  quia  unum 
forte  alterumve   pactum,    quod   a  consuotudino  rocodit,   jus  gentium  npn 
mutat  "  (De  rebus  bellicis,  c.  x.,  II.,  181  ;  cf.  also  De  foro  legatorum,  c.  iii., 

p.  126).  6  L,  c.  xi. 


398  CORNELIUS   VAN   BYNKERSHOEK 

law,  for  they  may  formulate  special  exceptions  :  "  .  .  .  non  satis 
constare  an,  quod  illi  pacti  sunt,  sit  habendum  pro  jure  publico, 
an  pro  exceptione,  qua  a  jure  publico  diversi  abeunt."1  In 
examining  the  question  of  neutral  goods  on  an  enemy's  vessel, 
he  refers  to  the  interpretation  of  treaties,  which  should  always 
be  understood  subjecta  materia,  having  due  regard  to  the  circum- 
stances determining  the  true  intention  of  the  parties.  Accord- 
ingly he  denies  a  general  scope  to  the  treaties  concluded  hi  1650, 
1662,  1674,  1678,  1679,  1697,  and  1713  between  the  States- 
General  and  Spain,  France,  England,  and  Sweden.  It  is  interest- 
ing to  note  that  Bynkershoek  advises  a  reference  to  arbitrators 
in  case  of  dispute  arising  from  the  interpretation  of  treaties  ;  for 
treaties  have  often  been  concluded  and  subsequently  repudiated 
owing  to  lack  of  agreement  as  to  their  construction,  and  so  nothing 
has  remained  of  them  but  an  empty  name — "  inane  nomen." 

So  much,  then,  for  Bynkershoek's  general  attitude  to  inter- 
national law,  his  conception  of  its  sources,  his  doctrine  as  to  its 
growth,  his  theory  in  relation  to  the  standpoint  of  his  predecessors 
and  contemporaries,  his  position  in,  and  affinities  with,  the 
modern  school ;  and  more  particularly  his  repeated  insistence  on 
the  importance  of  custom  and  usage,  the  evidence  of  treaties, 
diplomatic  documents,  public  ordinances  and  proclamations,  and 
on  the  guidance  of  reason  and  logic  impartially  exercised.  It 
will  be  well  to  consider  now  his  more  detailed  treatment  of  several 
important  questions  concerning  the  sovereignty  of  the  sea,  the 
rights  and  duties  of  ambassadors,  neutrality,  contraband,  neutral 
commerce,  and  certain  special  problems  hi  the  law  of  war. 

The  Sovereignty  of  the  Sea. — The  De  Dorninio  Maris  deals  in  a 
candid  and  unbiassed  manner  with  the  much-disputed  question 
of  the  sixteenth  and  seventeenth  centuries.  The  writer  dis- 
passionately examines  in  what  cases  the  sea  is  capable  of  becoming 
the  subject  of  sovereignty  or  exclusive  jurisdiction  ;  he  discusses 
the  pretensions  to  dominion  that  have  from  time  to  time  been 
made  by  States  ;  he  strenuously  opposes  the  doctrines  of  Gentilis 
and  Selden,  and  adopts  the  views  of  Grotius  and  Pufendorf  as  to 
the  common  right  of  nations  to  liberty  of  navigation,  of  com- 
merce, and  of  fishing  hi  the  open  sea. 

Grotius2  accepted  the  principle  of  the  Roman  law,8  and  the 

1  C.  xv.,  p.  190  ;  cf.  Zoucho,  Dejurefeciali.  Part  II.,  s.  8,  Quest.  2. 

2  II.,  c.  if,  §  12. 

"  Et  quidom  natural!  jure  commtmia  sunt  omnium  hsec  ;  aor  et  aqua 
proiluons  ot  niaro  ot  per  hoc  litora  niaris  "  (Just.  Inst.  II.,  tit.  1,  §  1). 


CORNELIUS  VAN  BYNKERSHOEK  399 

distinction  that  seas  were  res  communes,  and  navigable  rivers  res 
publicce.  But  from  the  Middle  Ages  claims  to  dominion  over 
various  territorial  and  narrow  seas  were  asserted,1  monopoly  of 
fishing  was  hence  demanded,  salute  and  other  maritime  honours 
were  expected,  and  the  power  to  exclude  belligerent  operations  of 
other  States  was  exercised.2  Sovereignty  was  soon  extended  to 
wider  zones,  and  the  attempts  to  put  down  pirates  and  to  police 
the  seas  assisted  this  expansion.  Tolls  and  dues  were  exacted 
from  foreign  vessels  in  return  for  the  security  afforded  to  them  ; 
and  such  exercise  of  limited  jurisdiction  developed  into  an  atti- 
tude of  exclusive  dominion.  In  this  way  arose  the  claims  of 
Genoa  to  the  Ligurian  Sea,  of  Venice  to  the  Adriatic,  of  France 
to  an  indefinite  maritime  zone  round  her  shores,  of  England, 
likewise  of  Denmark,  to  seas  of  Norway,  and,  with  Sweden,  to 
joint-ownership  with  the  Baltic.3  The  still  more  extraordinary 
claims  of  Spain  and  Portugal,  in  their  work  of  discovery,  aroused 
the  protests  of  excluded  nations,  and  soon  the  entire  principle 
of  maritime  sovereignty  began  to  be  repudiated.  Queen  Eliza- 
beth strenuously  opposed  the  Spanish  claims  to  the  waters  of  the 
Indies.4  Some  writers  like  Ange  de  Ubaldis  and  Nicholas  Ever- 
ardi  denied  in  general  the  right  of  ownership,  if  unsupported  by 
long  occupation  ;  others  like  Alphonse  de  Castro  combated  more 
particularly  the  specific  claims  of  Portugal,  Genoa,  Venice.  The 
difficulties  arising  in  the  struggle  between  the  United  Provinces 
and  Philip  II.  of  Spain  called  forth  further  writings,  such  as  the 
Advocatio  hispanica  (1613),  of  Gentilis,  the  Abridgement  of  all  Sea- 
Lawes  (1613),  and  De  Dominio  Maris  (1615)  of  William  Wellwood, 
the  Sovereignty  of  the  British  Sea  (1653)  of  John  Boroughs  ;  but 
of  all  such  contributions,  Grotius'  Mare  Liberum  (1609)  and 
Selden's  Mare  Clausum  (1635)  were  the  most  important  and 
exerted  the  greatest  influence.5  Grotius  insisted  on  the  necessity 
of  effective  occupation  opposed  the  establishment  of  perma- 
nent boundaries,  distinguished  between  absolute  property  and 
sovereignty,  and  between  the  oceanus  apertus  and  the  maria 

1  Cf.  Lapradelle,  "  Le  droit  de  1'Etat  sur  la  mer  territoriale  "  (Rev.  gen. 
de  dr.  int.  pub.,  t.v.,  1898,  p.  268) ;  also  E.  Nys,  Etudes  de  dr.  int.  et  de  dr. 
politique  (Bruxelles,  1901),  p.  181. 

2  De  Dominio  Maris,  c.  v.,  II.,  107. 

3  Selden,  Mare  Clausum,   II.,   cc.   xxx.-ii.  ;  Daru,  Histoire  de  Venise,  v., 
§  21  ;  Loccenius,  De  jure  Marit.,  I.,  c.  iv. 

4  Camden,  History  of  Elizabeth,  year  1580. 

5  Cf.  Nys,  Origines  du  dr.  int.,  etc.  (Brux.,  1894),  p.  380  et  seq.  ;  Oauchy, 
Le  droit  marit.  int.  (Paris,  1862),  ii.,  p.  95  ;  Ortolan,  Diplomatic  de  la  mer 
(1864),  p.  128J;  Hautefeuille  (1869),  p.  18  et  seq. 


400  CORNELIUS  VAN  BYNKEKSHOEK 

interiora.1  Selden  did  not  clearly  discriminate  between  terri- 
torial seas  and  the  open  sea  ;  he  asserted  the  sovereignty  of 
England  over  the  surrounding  seas,  and  denied  the  claims  of 
the  Dutch  to  fish  off  the  coasts.2 

By  the  middle  of  the  seventeenth  century  such  wide  claims  were 
becoming  rarer.  The  renewed  pretensions  of  Charles  I.  and  of 
Cromwell,  and  also  of  Genoa,  were  energetically  denied  by 
Pontanus  and  Graswinckel,  whose  arguments  are  often  referred 
to  by  Bynkershoek.3  The  latter,  following  Grotius,  adopts  the 
Roman  doctrine  as  to  acquiring  property.  Continuous  possession 
is  essential,  and  this  is  not  possible  here.  He  points  out  the 
invalidity  of  Selden's  argument  (his  "  ambitiosa  eruditio  "  not- 
withstanding), through  confusing  the  mare  proximum  with  the 
mare  exterum,  ridicules  the  traditional  marriage  of  the  Venetian 
doges  to  the  Adriatic,4  denies  the  English  claims  to  maritime 
superiority,  and  does  not  consider  that  the  conceding  of  naval 
honours  to  the  English  flag  by  his  country  necessarily  implied 
any  acknowledgment  of  the  former's  sovereignty,5  and  further 
objects  to  Selden's  pretension6  that  a  taking  possession  of  the 
neighbouring  waters  of  a  shore  involves,  ipso  facto,  a  right,  or 
even  a  definite  anticipation,  of  further  extending  such  authority 
to  more  distant  portions  of  the  ocean.7  He  admits,  however, 
that  certain  portions  of  the  sea  are  capable  of  exclusive  dominion 
— in  the  first  place,  the  mare  terrce  proximum,  and  secondly,  such 
seas  as  are  entirely  surrounded  by  the  neighbouring  territory  of 
any  particular  state,  with  an  outlet  into  the  ocean,  of  which  both 
shores  are  exclusively  occupied  by  it — e.g.,  the  Mediterranean  to 
the  Roman  Empire,  and,  in  his  own  time,  the  Black  Sea  to  Turkey. 
He  recognizes,  further,  that  in  certain  cases  it  is  legitimate  for 
a  maritime  Power  to  claim  special  rights  over  certain  parts  of 
the  high  sea ;  but  these  rights  are  distinct  from  complete  sove- 
reignty, inasmuch  as  they  are  to  be  exercised  in  the  general  in- 
terests of  commerce  and  navigation,  and  to  consist  in  privileges 
of  police  and  superintendence. 

As  to  the  limits  of  the  territorial  sea,  Bodin,8  relying  on  a  dictum 
of  Baldus,  had  asserted  that  sovereigns  of  maritime  nations  had 

1  Mare  Liberum,  c.  v.  ;  De  Jure  B.  ac  P.,  II.,  c.  ii.,  §§  2,  3  ;  I.,  c.  iii.,  §  13  ; 
also  Bodin,  La  Itepublique  (Paris,  1577),  I.,  c.  xi.,  p.  215. 

2  Of.  conclusion  of  Mare  Clausum  ;  Walker,  Hist,  of  Law  of  Nation* 
(1899),  vol.  i.,  §  92,  p.  164. 

3  De  Dom.  Maris,  c.  vi.,  II.,  p.  109  ;  cf.  Nys,  op.  tit.,  p.  388. 

*  De  Dom.  Maris,  c.  vi.  5  Ibid.,  c.  v.  6  Mare  Clausum,  II.,  c.  30. 

7  De  Dom.  Maris,  c.  iii.,  II.,  104.  8  IM  Rlpublique,  I.,  c.  x.,  p.  170. 


CORNELIUS  VAN  BYNKERSHOEK  401 

a  right  to  an  extent  of  at  least  sixty  miles  from  the  shore. 
Bynkershoek  was  the  first  to  solve  the  problem,  or  at  least  to  offer 
an  acceptable  definition  of  marginal  waters.  Effective  protec- 
tion, depending  on  the  force  of  arms,  is  made  the  criterion  of 
territorial  sovereignty ;  .  .  .  "  potestatem  terrae  extendi  quo- 
usque  tormenta  exploduntur,  eatenus  quippe  cum  imperare,  turn 
possidere  videmur ;  .  .  .  alioquin  generaliter  dicendum  esset, 
potestatem  terrae  finiri,  ubi  finitur  armorum  vis."1  The  marine 
league,  as  being  originally  the  distance  from  the  shore  measured 
by  a  cannon-shot,  was  thenceforth  accepted  as  the  .limit  of  terri- 
torial waters  ;  and  Bynkershoek's  proposal  has  been  adopted  not 
only  in  private  legislation,  but  also  in  great  international  docu- 
ments, such  as  the  North  Sea  Fisheries  Convention  of  1882.2 
Some  attempts  have  been  made3  in  recent  times  to  extend  this 
limit,  but  there  is  no  doubt  that  the  rule  of  the  three-mile  limit 
remains  part  of  modern  international  law. 

The  Legal  Position  of  Ambassadors. — At  the  time  Bynkershoek 
wrote  his  Deforo  legatorum,  opinion  on  the  legal  status  of  ambas- 
sadors was  far  from  unanimous.  The  two  chief  points  considered 
are  their  inviolability  and  independence.  The  former  principle 
was  universally  admitted  in  theory,  and  generally  followed  in 
practice,  even  in  the  case  of  an  enemy's  envoy  in  the  Saracen 
wars  ;  but  in  the  thirteenth  century  it  rested  rather  on  the  promise 
made,  and  on  the  moral  obligation  to  remain  faithful  to  it,  than 
on  any  recognition  of  its  legal  significance.4  The  independence 
of  ambassadors  was  not  so  readily  admitted.  Some  writers  had 
denied  their  immunity  by  invoking  the  authority  of  the  Roman 
jurisconsults  in  reference  to  the  legati  ;  but  Bynkershoek  pointed 
out5  that  the  analogy  was  untenable,  owing  to  their  different 
functions.  Afterwards,  the  fiction  of  exterritoriality  was  con- 
ceived, as  a  device  to  guard  public  ministers  representing  their 
sovereigns  against  local  caprice  or  disturbance,6  but  this  did  not 
extend  to  their  suite  or  servants  till  much  later.7  In  1576  Pierre 

1  De  Dom.  Maris,  c.  ii.,  II.,  103-4. 

2  Hertslet,  Collection  of  Treaties,  XV.,  p.  795. 

3  See  Brit.  State  Papers,  North  America,    United  States  (1864),  LXIL, 
pp.  19-29  ;  and  also  Wharton,  International  Law  of  the  United  States,  §§  32,  327. 

4  Cf.  Joinville,  Histoire  de  Saint  Louis,  c.  Ixxi.,  as  to  the  practice  which 
then  prevailed. 

6  De  foro  legatorum,  c.  i. 

6  Pradier-Fodere,    Cours  de  droit  diplom.,   I.,   272 ;   Rolin-Jacquemyna, 
Consultation  dans  Vaffaire  Arnim,  p.  123. 

7  Rev.  gen.  de  droit  int.  -pub.,  t.  viii.  (1901),  p.  493  ;  Fillet,  Le  droit  int.  pub., 
ses  elements  constitutifs  .  .  .  (Paris,  1894),  p.  13. 

27 


402  CORNELIUS  VAN  BYNKERSHOEK 

Ayrault1  urged  the  criminal  exemption  of  ambassadors  from  the 
local  jurisdiction  for  reasons  of  law  as  well  as  of  fact.  Albericus 
Gentilis  and  Fran$ois  Hotman  dealt  more  fully  with  the  question 
of  an  envoy's  conspiracy  against  the  sovereign  to  whom  he  is 
accredited.  These  two  jurists  were  consulted  by  the  English 
authorities  in  the  famous  case  of  Mendoza,  the  Spanish  ambas- 
sador, who  had  conspired  against  Elizabeth.  He  was  ordered  to 
leave  the  country,  and  a  commissioner  was  sent  to  Spain  to  prefer 
a  complaint  against  him.2  Grotius  held  that  the  ambassador 
and  his  suite  are  free  from  local  jurisdiction  by  the  tacit  consent 
of  nations.  But  in  the  case  of  Don  Pantaleon  Sa  (brother  of  the 
Portuguese  ambassador  in  England),  who  was  tried  for  murder 
in  1653,  found  guilty,  and  executed,  the  claim  of  exemption  on 
the  ground  of  belonging  to  the  ambassador's  suite  was  rejected 
by  the  Court.  Zouche,  who  was  one  of  the  judges,  concurred  in 
this  decision.3  Wicquefort's  work4  (1679)  is  merely  a  collection 
of  examples .  The  systematic  development  of  doctrine  and  formu- 
lation of  principles  from  given  data  was  reserved  to  Bynkershoek, 
who  at  once  grasps  the  fundamental  distinction  between  law  and 
politics — "  quod  iterum  prudentiae  politicae  est,  cujus  causam  a 
jure  gentium  semper  distinguendum  esse  reor."5  He  holds  that 
all  public  ministers,  irrespective  of  title  or  grade,  have  an  equal 
right  to  protection,  as  well  as  their  families,  servants,  and  suite, 
and  criticizes  his  own  government  for  not  always  acting  on  this 
principle.  The  competence  of  the  civil  tribunal  depends  on 
domicile  as  to  the  person,  and  on  the  lex  rei  sitce  as  to  property. 
He  agrees  with  Hilligerus  that  in  respect  to  property  a  king  is 
on  the  same  footing  as  an  ordinary  subject :  it  may  be  seized  to 
satisfy  just  claims  ;  but  only  such  goods  of  an  ambassador  are 
attachable  as  are  not  necessary  to  him  in  his  official  capacity 
except  household  goods  for  his  or  his  family's  personal  use.6  An 
ambassador  who  takes  part  in  commercial  transactions  becomes 
liable  for  resulting  debts,  just  as  an  ordinary  merchant,7  though 
even  here  diplomatic  proceedings  are  perhaps  more  advisable. 
Unlike  Wicquefort,  Bynkershoek  maintains  that  a  subject  of  the 
State  to  which  he  is  accredited  minister  by  another  State  is  not 

1  L'ordre,  formalite  et  instruction  judiciaire  .  . .-,  Bk.  I.,  Pt.  IV.,  s.  12. 

2  Walker,  op.  cit.,  I.,  §  98. 

3  Cf.  his  dissertation  on  the  subject :  Solutio  qucestionia  veteris  et  novce  de 
legati  ddinquentis  judice  competente  (Oxon,  1657). 

4  L' Ambassadeur  et  ses  fonctions  (Cologne,  1679). 

5  Deforoleg.,  II.,  156.  6  Op.  cit.,  c.  xvi. 
7  Op.  cit.,  c.  xiv.,  II.,  141. 


CORNELIUS  VAN  BYNKERSHOEK  403 

entitled  to  any  immunities — which  is  but  the  logical  sequence  of 
his  fundamental  principle. 

As  to  criminal  jurisdiction,  a  distinction  is  made  between 
crimes  against  the  individual  and  those  against  the  State.  He 
considers  the  case  of  Don  Pantaleon  Sa,1  and  says  contradictory 
precedents  are  insufficient,  only  general  practice  being  reliable. 
Ambassadors  cannot  be  tried  and  punished  by  the  local  tribunal, 
though  in  crimes  against  the  State  they  may,  in  accordance  with 
the  customs  of  the  seventeenth  and  eighteenth  centuries,  be 
arrested,  examined,  and,  if  found  guilty,  expelled.2  On  the  prin- 
ciple that  consent  renders  competent  an  otherwise  incompetent 
tribunal,3  an  ambassador  may  renounce  his  privilege  of  renvoi, 
or  any  other  exemption,  and  submit  to  the  local  jurisdiction,  if 
his  sovereign  consent.  The  house  of  an  ambassador  is  inviolable 
to  the  same  extent  as  his  person  ;4  but  it  may  not  offer  refuge  to 
criminals.5  Finally,  third  Powers  are  forbidden  all  measures  of 
reprisal  or  retorsion  against  ministers  ;  though  a  State  is  per- 
mitted to  avenge  any  injury  inflicted  on  its  own  ambassadors. 

In  the  seventh  chapter  of  De  rebus  varii  argumenti,  the  question 
is  examined  whether  an  ambassador's  acts,  which  are  contrary 
to  his  secret  instructions,  are  binding  on  his  sovereign.  Apart 
from  the  fact  that  there  is  no  strict  analogy  between  international 
conventions  and  private  contracts,  the  possibility  of  involving 
great  issues  brought  about  the  practice,  general  in  Bynkershoek's 
time,  of  requiring  ratification  by  the  sovereign,  except  when  the 
entire  instructions  are  contained  in  the  patent  full  power.  But 
if  the  minister  goes  beyond  these  instructions,  or  in  any  other 
way  manifestly  exceeds  his  authority,  the  sovereign  is  not  bound  ; 
though  he  is  bound  if  the  acts  are  within  the  limits  of  his  known 
authority,  and  he  has  exceeded  only  secret  instructions.  This 
doctrine  has  received  the  support  of  various  recent  writers.6 

The  Law  of  War. — The  De  rebus  bellicis  does  not  present  a 
comprehensive  treatment  of  the  laws  of  war,  but  deals  thoroughly 

1  CO.  xyii.,  xviii.,  and  xix. 

2  C.  xvii.,  II.,  147.     Cf.  the  cases  of  a  Spanish  ambassador's  secretary, 
implicated  in  a  plot  (1605)  to  deliver  up  Marseilles  to  the  Spanish  (Walker, 
op.  cit.,  I.,  179) ;  1716,  Gyllenberg,  a  Swedish  minister,  accused  of  conspiracy 
(Mahon,  Hist,  of  England  .  .  .,  I.,  389);  1718,  Cellamare,  Spanish  ambassador 
in  France,  of  conspiracy  against  the  Regent  (De  Martens,  Causes  celcbrea, 
L,  139). 

a  Dig.  V.,  tit.  i. 

4  See  Politis,  Rev.  gin.  de  droit  int.  pub.,  III.,  694. 

5  C.  xxi.,  II.,  152. 

6  E.g.,  Kluber,  §  142  ;  Phillimore,  II.,  lii. ;  Hefiter,  §  87. 


404  CORNELIUS  VAN  BYNKERSHOBK 

and  practically  with  certain  matters  of  prime  importance. 
Bynkershoek's  aim  is  not  to  compile  a  code,  after  the  fashion  of 
Grotius  and  Pufendorf ,  but  to  suggest  solutions  to  urgent  prob- 
lems. It  is  not  too  much  to  say  that  his  treatment  of  commercial 
and  maritime  questions,  and  especially  the  relationships  between 
neutrals  and  belligerents,  is  more  thorough,  more  searching,  more 
related  to  actual  practice,  more  pervaded  with  sound  sense,  with 
legal  and  statesmanlike  skill,  than  that  of  any  other  work  on  the 
subject  before  his  time. 

The  tendency  of  the  philosophical  writers  of  the  eighteenth  cen- 
tury was  to  lay  greater  obligations  on  belligerents  and  to  impose 
certain  restrictions  on  their  rights  in  warfare.  The  actual  prac- 
tice of  the  century  was  otherwise  ;  and  Bynkershoek  was  inclined 
to  the  sterner  attitude.  Fighting  for  a  just  cause  sanctions  the 
use  of  every  means  to  attain  the  desired  ami  speedily  and  effec- 
tively. Justice  is  the  essential  of  war ;  generosity  is  only  an 
accident.  "  Justitia  in  bello  omnino  necessaria  est,  aninii  vero 
magnitudo  a  mera  voluntate  proficiscitur."1  Humanity,  clem- 
ency, piety,  and  other  magnanimous  virtues  are  certainly  noble, 
but  cannot  be  insisted  on  by  law.2  Reason  (by  which  he  often 
means  the  logical  rigour  and  impartiality  of  nature)  permits  the 
use  of  all  means  except  perfidy  against  an  enemy.8  Hence  his 
definition  :  "  Bellum  est  eorum,  qui  suae  potestatis  sunt,  juris 
sui  persequendi  ergo,  concertatio  per  vim  vel  dolum,"4  the  mam 
defect  of  which  is  the  omission  to  emphasize,  as  Grotius  had 
already  done,5  that  war  is  a  state  or  condition  ;  the  inclusion  also 
of  dolus  is  superfluous. 

Grotius  held  that  custom  requires  a  declaration  of  war,  but 
Bynkershoek  cites  many  examples  to  refute  him  ;  unless  there  is 
a  special  convention  to  the  contrary,  it  is  not  necessary.  As  a 
rule  the  opening  of  hostilities  implies  a  cessation  of  commercial 
relations  ;  but  commerce  is,  in  the  interests  of  the  subjects,  some- 
times permitted,  either  generally  or  as  to  certain  merchandise 
only.6  Hence  peace  and  war  may  coexist.  "Pro  parte  sic 
bellum,  pro  parte  pax  erit  inter  subditos  utriusque  principis."7 
This  is  a  strange  position  in  view  of  his  rigorous  general  doctrine. 

1  C.  i.,  II.,  164.  2  C.  iii.,  H.,  167. 

3  C.  i.,  II.,  163.  *  Ibid. 

"  Status  per  vim  certantium  qua  tales  sunt  "  (I.  1,  2,  1). 

6  In  the  time  of  Bynkershoek,  however,  the  practice  of  "  licences  de 
commerce  "  was  rare.     See  Kleen,  Lois  et  usages  de  la  neutralite  (Paris,  1900), 
II.,  227. 

7  C.  iii.,  p.  168. 


CORNELIUS  VAN  BYNKERSHOEK  405 

There  are  at  times  certain  contradictions  in  Bynkershoek's 
writings,  due  to  his  reasoning,  on  the  one  hand,  inductively  from 
usages  and  customs,  and  on  the  other,  deductively  from  "  reason  "; 
and  occasionally  the  conclusions  reached  are  different,  and  are 
not  compromised  or  reconciled.  His  recognition  of  the  possi- 
bility to  maintain  warlike  and  commercial  relations  simultaneously 
has  been  claimed  as  the  secret  which  explains  so  many  apparent 
contradictions  in  our  modern  law  of  nations.1 

We  may  exercise  the  rights  of  war  only  in  our  own  territory, 
in  the  enemy's,  or  in  a  territory  which  belongs  to  no  one.2  To 
commit  hostilities  on  neutral  territory  is  to  make  war  on  its 
sovereign,  who  is  obliged  to  use  every  means  to  prevent  belligerent 
operations,  and  to  compel  a  restoration  of  any  property  there 
captured.  A  combatant's  necessity,  in  this  respect,  is  no  suffi- 
cient justification.  Retaliation  is  to  be  exercised  directly  against 
the  enemy  and  never  through  the  injury  of  a  neutral.  The  decree 
of  the  States-General,  October  10,  1652,  rightly  prohibited  vio- 
lence in  a  neutral's  port,  because  of  the  danger  to  the  neutral. 
Hence,  it  is  unlawful  to  commence  an  attack  in  neutral  territorial 
waters,  within  cannon-shot,  but  if  the  attack  has  already  begun 
elsewhere,  it  is  perhaps  permissible — "  dum  fervet  opus  "• — to 
pursue  the  enemy  to  jurisdictional  waters,  provided  the  neutral's 
interests  are  not  injured.3  This  opinion,  however,  is  given  con- 
ditionally, and  Bynkershoek  admits  that  it  is  by  no  means  uni- 
versally accepted  by  his  contemporaries. 

As  to  private  property  in  war,  he  lays  down  the  general  rule — 
"  Quaecumque  hostium  sunt,  recte  capimus,  ex  autem  bona  pars 
sunt  imperil  hostilis,  quaeque  ita  hosti,  prodesse,  nobis  nocere 
possunt."  Neutrals  on  enemy's  territory  may  be  considered  as 
enemies  ;  and  their  goods,  if  previously  taken  by  the  enemy, 
may  be  lawfully  captured  by  us.  Little  attention  is  given  to  the 
immunities  of  private  persons  or  property  during  a  state  of  war  ; 
but  the  conditions  under  which  an  enemy  may  acquire  property 
in  captured  movables  or  immovables,  or  the  conditions  under 
which  they  return  to  the  former  owners,  are  considered  more 
fully.  Capture  does  not,  ipso  facto,  confer  rights  of  property  ; 

1  "  C'est  ici  qu'une  remarque  profonde  de  cet  habile  publicisto  viont 
eclairer  la  question  d'un  jour  nouyeau,  et  nous  rev&er,  pour  ainsi  dire,  le 
secret  qui  oxplique  tant  do  contradictions  apparentes  de  notro  droit  des  gens 
modernes  "  (E.  Cauchy,  Le  droit  marit.  inter.,  Paris,  1862.  p.  60). 

2  "  Jure  belli  adversus  hostem  duntaxat  utimur  in  nostro,  hostis,  aut 
nullius  torritorio  (c.  viii.,  p.  177). 

3  C.  viii.,  I.,  178. 


406  CORNELIUS  VAN  BYNKERSHOEK 

apart  from  any  title,  it  merely  operates  as  a  conditional  transfer. 
Grotius'  criterion  of  twenty-four  hours'  just  possession1  does  not 
always  hold  good.2  Firm  possession  follows  on  conveyance  of 
the  price  intra  pr&sidia,  so  that  it  may  effectively  be  defended — 
i.e.,  the  question  is  one  of  real  possession  and  not  one  of  arbitrary 
limitation  of  tune,3  though  twenty-four  hours'  possession  intra 
prcesidia  is  a  presumption  of  just  possession.  The  same  rule  is 
also  given  by  Loccenius,4  and,  in  later  times,  followed  by  Sir 
William  Scott,  who  refers  to  the  principles  laid  down  in  the 
Consolato  del  Mare,6  and  in  the  work  of  Bynkershoek.  The 
general  rule  may  be  modified  by  special  circumstances  in  any 
particular  case  ;  but  the  fundamental  point  is  an  ability  to 
defend  the  prize. 

The  rights  of  postliminium,  consequent  on  recapture,  do  not 
apply  if  the  enemy  obtained  possession  in  any  other  manner 
than  by  force.  The  case  of  immovable  property  differs  from  that 
of  movable.  The  former  when  recaptured  returns  to  the  original 
owner  by  postliminium  ;  but  the  latter,  retaken  from  the  enemy, 
vests  in  the  recaptors,  since  recapture  effects  as  valid  a  trans- 
ference as  capture.  A  belligerent  may  condemn  enemy's  property 
whilst  lying  under  capture  in  a  neutral  port.  The  same  opinion 
was  expressed  in  1789  by  Sir  William  Scott  and  the  whole  Court 
of  Bang's  Bench,  though  later  this  great  judge  advanced  a  dif- 
ferent doctrine.6  In  the  United  States,  decisions  were  given  in 
several  cases7  in  conformity  with  Bynkershoek's  view,  which, 
indeed,  accorded  with  long-established  European  practice.  A 
reward  must  be  given  to  the  recaptors  by  the  original  owners  for 
their  sacrifice  and  risk,  to  be  estimated  by  impartial  assessors. 
He  approves  the  rule,  in  this  respect,  of  the  Consolato  del  Mare, 
which,  however,  he  believes  to  be  largely  a  "  farrago  of  nautical 
laws."8  If  a  portion  of  a  country  be  occupied,  the  whole  is  con- 
sidered in  occupation  and  possession,  if  such  has  been  the  inten- 

1  "    ...  Recentiori  jure  gentium  inter  Europseos  populos  introductum 
videmus,  ut  talia  capta  censeantur,  ubi  per  horas  vigintiquatuor  in  potestate 
hostium  fuerint  "  (De  Jure  B.  ac  P.,  Bk.  III.,  c.  6,  §  3,  n.  2). 

2  Cf.  case  of  the  Santa  Cruz,  1  C.  Rob.,  58. 

3  C.  iv.,  p.  169. 

4  De  Jure  Marit.,  Bk.  II.,  c.  iv.,  s.  4. 

6  The  Ceylon  (1811),  1  Dod.  Adm.  Rep.,  105. 

6  Smart  v.  Wolff,  3  Term  Rep.,  329. 

7  Cf.  Rose  v.  Himely,  and  Hudson  v.  Ouestier,  4  Cranch's  Rep.,  241,  293  ; 
see  also  Lampredi,  Del  Commercio,  etc.,  Pt.  I.,  §  14. 

"  Dando  a  quelli  che  a  i  detti  nimici  tolta  haveranno,  beveraggio  con- 
veniento,  eecondo  la  fatica  che  ne  haveranno  avuta,  e  secondo  il  danno  che 
ne  haveranno  sofferto  "  (c.  287,  §  1136). 


CORNELIUS  VAN  BYNKEBSHOEK  407 

tion  of  the  captor,  and  if  the  vanquished  enemy  has  retained  no 
other  part  of  it. 

It  is  permissible  to  confiscate  an  enemy's  actions  and  credits 
(actiones,  nomina),  but  not  if  war  is  so  mildly  carried  on  that 
commerce  continues  between  the  combatants.  Though  an  enemy, 
as  such,  forfeits  his  persona  standi  in  judicio,  as  it  is  expressed  in 
the  decrees  of  the  States-General  of  October  2  and  29,  1590,  and 
so  held  in  subsequent  cases,  yet  there  is  an  exception  when  com- 
mercial intercourse  is  allowed  on  both  sides.1  Vattel  acknow- 
ledges the  legality  of  such  confiscation,  but  points  out  that  in 
more  recent  times  a  more  liberal  practice  was  generally  adopted.2 
If,  however,  credits  and  actions  have  not  actually  been  handed 
over  to  the  sovereign,  the  former  right  of  creditors  revives  at  the 
conclusion  of  peace,  by  an  application  of  the  principle  of  post- 
liminium.  "  Si  exegerit,  recte  solutum  est,  si  non  exegerit  pace 
facta  reviviscit  jus  pristinum  creditoris.  .  .  .  Nomina  igitur, 
non  exacta,  tempore  belli  quodammodo  intermori  videntur,  sed 
per  pacem,  genere  quodam  postliminii,  ad  priorem  dominum 
reverti."3 

If  before  the  war  we  owned  in  the  enemy's  country  any  property 
which,  during  the  war,  had  been  concealed  and  therefore  not 
confiscated,  it  returns  to  the  former  owners  and  does  not  become 
the  property  of  the  recaptors,  in  case  it  is  retaken  by  our  subjects.4 

As  to  the  right  of  postliminium  on  an  ally's  territory,  Bynkershoek 
says  :  "  He  who  returns  to  his  sovereign's  ally  is  entitled  to  the 
right  of  postliminy  because  he  is  deemed  to  have  returned  to  his 
own  country ;  for  allies  are  considered  as  constituting  one  State 
with  ourselves  "  ("  Qui  revertitur  ad  fcederatos,  jus  postliminii 
habet,  qui  ad  suam  civitatem  videtur  reversus,  foederati  enim 
nobiscum  unam  quodammodo  civitatem  constituunt  ").5  Simi- 
larly, if  our  property,  captured  by  enemies,  eventually  comes 
into  the  territory  of  our  ally,  it  is  regarded  as  having  been  restored 
to  us.6  The  propositions  laid  down  regarding  postliminium  on 
neutral  territory  will  be  misleading,  unless  due  attention  be  given 
to  the  distinction  between  military  rights,  accruing  to  the  bel- 
ligerent through  capture  or  conquest,  and  civil  rights,  acquired 
apart  from  war  by  contract  or  otherwise.  Actual  possession  is 

1  C.  vii.,  p.  176. 

2  "  Mais  aujourd'hui,  1'avantage  et  la  surete  du  commerce  ont  engage  tous 
les  souverains  de  1'Europo  a  so  relacher  do  cetto  rigueur  "  (Bk.  III.,  a  5, 
§77). 

3  C.  vii.,  p.  177.  4  Ibid. 

5  C.  xv.,  p  190.  6  C.  xv.,  p.  191. 


408  CORNELIUS  VAN  BYNKERSHOEK 

the  criterion  of  military  rights,  ordinary  proof  of  title  being  that 
of  civil  rights.  Hence  a  prize  taken  by  captors  or  their  agents 
into  neutral  territory  does  not  return  to  its  former  owner :  for 
to  the  neutral  State  possession  is  evidence  of  the  military  right, 
and  in  such  a  case,  as  Hertius  says,  the  fact  must  be  taken  for 
the  law.1  From  this  it  follows  that  if  after  having  been  captured 
a  vessel  escape,  or  be  taken  into  a  neutral  territory  by  others 
than  the  original  captor,  or  his  agents,  the  civil  right  of  the  former 
owner  revives,  and  the  property  returns  to  him.  It  does  not,  of 
course,  apply  to  cases  of  regular  condemnation  by  the  captor's 
tribunal,  which  would  turn  the  military  into  a  civil  right. 
Further,  as  Bynkershoek  says,  this  is  true  only  of  captures  made 
in  regular  warfare  :  capture  by  pirates  in  no  way  transfers  the 
property.  Respecting  the  right  of  postliminium  as  applied  to  cities 
and  States,  he  approves  the  rule  of  Grotius  that  "the  right  of 
postliminy  is  applicable  to  a  whole  people,  as  well  as  to  an  indi- 
vidual, and  that  a  political  body,  which  was  free  before,  recovers 
its  liberty  when  its  allies,  by  force  of  arms,  deliver  it  from  the 
power  of  the  enemy."2 

Neutrality. — The  conception  of  neutrality  was  not  unknown 
in  ancient  times — e.g.,  among  the  Greeks — but  there  was  never 
systematic  practice.  Rome  regarded  another  State  either  as  an 
ally  or  an  enemy  :  "  Romanes  aut  socios  aut  hostes  habeatis 
oportet,  media  nulla  via  est."3  In  the  Middle  Ages  feudalism 
favoured  a  similar  view.  With  the  increase  of  maritime  com- 
merce and  other  State  relationships,  and  the  founding  of  colonies, 
the  notion  of  neutrality  became  more  clearly  defined.  The 
objects  of  war  became  changed,  and  peace  was  promoted  by  the 
Church.  "  Mais  le  grand  facteur  de  la  neutralite  a  ete  surtout 
un  sentiment  de  solidarite  interesse  et  d'ordre  economique."4 
Treaties  and  conventions  began  to  play  a  prominent  part.  Early 
in  the  seventeenth  century  practice  was  unsettled  and  capricious, 
and  the  doctrine  of  Gretius  was  inadequate  and  incoherent, 
being  one  of  the  most  unsatisfactory  portions  of  his  work.  By 
the  eighteenth  century  the  duty  of  impartiality  and  respect  of 
neutral  territory  began  to  be  more  seriously  recognized.  Later, 
Bynkershoek  and  Vattel  formulate  more  thorough  principles  of 
neutrality ;  and,  in  some  respects,  the  doctrines  of  the  former, 

1  Adnol.  ad  Puffend.  De  Jure  Nat.  ;  see  also  Grotius,  Bk.  VIII,  c.  6,  n.  25. 

2  De  Jure  Belli  ac  Paris,  Bk.  III.,  c.  9,  §  9,  n.  1. 

1     T  •  •»  " 

3  Livy,  xxxn. 

*  A.  Thonior,  Contrebande  de'jOuerre  (Bordeaux,  1904),  p.  9 


CORNELIUS  VAN  BYNKERSHOEK  409 

though  he  wrote  earlier,  are  more  advanced  than  the  latter's, 
hi  spite  of  the  fact  that  Bynkershoek  uses  the  negative  expression 
non  hostes,  and  Vattel  adopts  the  more  significant  neutralite  and 
neutres.  Greek  writers1  had  used  the  phrases  ^avyiav  ayetv  (to 
keep  silent),  e'/c  rov  pAaov  Ka0fj<r0ai,  and  6  Bid  fjueaov  (expressing  the 
idea  of  an  intermediate  position) ;  Roman  writers  spoke  of  medii, 
amici,  pacati,  words  used  also  in  the  Middle  Ages.  In  a  proclama- 
tion of  the  King  of  France,  1408,  neutralitas  is  used  in  reference 
to  the  popes  of  Rome  and  Avignon ;  and  a  little  later,  in  the 
German  and  Swiss  wars,  the  terms  stitte  sitzen  and  Unpartyschung 
are  found.  In  a  convention  between  England  and  Denmark, 
1465,  guerrarum  abstinentice  appears,  and  at  the  end  of  the  cen- 
tury neutralite  is  common  in  treaties,  conventions,  and  edicts.  In 
the  Thirty  Years'  War,  we  get  the  Germanized  Neutralitat  ; 
and  again  Machiavelli  and  Guicciardini  make  use  of  neu- 
tralitd,  and  Bodin  uses  neutralite  and  neutre.  Grotius  reverts 
to  the  Roman  form  medii  in  bello,  and  Bynkershoek  calls 
neutrals  non  hostes,  defining  them  as  those  "  qui  neutrarum 
partium  sunt." 

Bynkershoek  occupies  a  high  place  in  the  discussion  of  neu- 
trality,2 though  not  all  his  propositions  are  now  accepted. 
Grotius'  treatment  is  vague  and  meagre  ;  Zouche  relies  more  on 
State  policy  than  on  law  :  Pufendorf  denies  to  neutrals  the  right 
of  undisturbed  commerce,  apart  from  special  conventions.  Un- 
like Grotius  and  Vattel,  Bynkershoek  does  not  allow  a  neutral  to 
judge  as  to  the  just  or  unjust  cause  of  belligerents  and  offer  help 
accordingly,  except  when  the  two  combatants  are  both  allies  of 
the  neutral,  and  there  is  no  treaty  otherwise  regulating  the  rela- 
tionships. The  general  principle  is  "belli  justitia  vel  injustitia 
nihil  quicquam  pertinet  ad  communem  amicum,"8  subject  to  the 
rare  exception  suggested,  which,  of  course,  applies  only  to  treaties 
concluded  before  the  war, — "  bello  jam  exorto  .  .  .  neutri  amico 
auxilia  recte  vel  promittuntur  vel  mittuntur."  4  Our  tributary  or 
protected  States  may  assist  their  immediate  sovereign  against 
us,  but  not  with  arms  and  men.6 

1  E.  Nys,  fitiides  de  dr.  int.  et  de  dr.  pol,  2mc  serie  (Brux.,  1901),  p.  57. 

2  "  Dans  Phistoire  do  la  doctrine  de  la  noutralite,  Bynkershoek  occupo 
un  rang  distingue  "  (E.  Nys,  op.  cit.,  p.  86). 

3  C.  ix.,  p.  179. 

4  C.  ix.,  p.  180.     (As  to  allies  and  neutrality,  see  the  opinion  of  Lord 
Hawkesbury,  afterwards  Earl  of  Liverpool,  in  his  Discourse  on  the  Conduct 
of  the  Government  of  Great  Britain  in  respect  to  Neutral  Nation?,  London, 
1794,  p.  68). 

5  P.  181. 


410  CORNELIUS  VAN  BYNKERSHOEK 

Bynkershoek  clearly  recognizes  the  claims  of  neutral  com- 
merce, and  the  necessity  to  effect  a  reconciliation,  legally  rather 
than  diplomatically,  and  of  the  conflicting  interests  of  neutrals 
and  belligerents.  Reason,  and  not  personal  advantage,  is  to  be 
the  guide — "  de  ratione,  non  de  utilitate,  omnis  disputatio  est." 
The  main  guiding  principles,  presenting  a  substantial  advance  on 
the  ideas  and  practice  of  the  time,  are  an  obligation  on  the  neutral 
not  to  assist  one  belligerent  in  any  way  which  would  be  detri- 
mental to  the  other — "  si  medius  sim,  alteri  non  possum  prodesse, 
ut  alteri  noceam  " — and  a  corresponding  right  not  to  be  injured 
by  the  belligerents  in  its  pacific  commerce — "  qui  injuriam  non 
fecit  non  recte  patitur."  With  Bynkershoek  it  is  mainly  a  ques- 
tion of  supplying  subsidies  and  materials  ;  the  enlistment  of 
troops  on  neutral  territory  is  not  prohibited,  if  there  is  no  law  or 
declaration  to  the  contrary.  In  this  respect  he  is  at  one  with 
Grotius,  Wolf,  Galiani,  and  other  publicists  of  the  time,  and  with 
the  practice  then  prevailing.  The  right  of  recruiting  was  fre- 
quently allowed  in  treaties — e.g.,  in  1656  between  England  and 
Sweden.1 

Contraband. — The  Roman  emperors  prohibited  commerce  with 
the  barbarians  in  certain  articles — e.g.,  arms,  iron,  etc. — and  later 
the  popes  forbade  trade  with  the  infidels  in  weapons  and  muni- 
tions of  war — merces  banno  interdictce.  Sovereigrs  assumed  the 
right  to  draw  up  lists  of  contraband  goods,  and  vary  them  at 
pleasure.  The  growth  of  commerce  fostered  clearer  notions  ; 
and  treaties  were  concluded  in  favour  of  the  pacific  trade  of 
neutrals.  The  Treaty  of  the  Pyrenees  (1659),  in  Art.  12,  specifies 
goods  which  are  contraband — e.g.,  objects  directly  connected 
with  war,  also  saltpetre,  horses,  and  saddles  ;  and  in  Art.  13 
declares  provisions  and  other  necessities  of  life  to  be  free.  In 
the  Treaty  of  Utrecht  (1713)  contraband  goods  are  enumerated 
(Art.  19) — horses,  harness,  warlike  arms  and  instruments.  As 
to  provisions,  they  are  declared  contraband  in  the  treaties  of 
1303  between  France  and  England,  of  1613  between  Sweden  and 
the  Hanseatic  towns,  of  1625  between  England  and  the  same, 
of  1654  between  England  and  the  United  Provinces  ;  but  excluded 
in  the  treaties  of  1655  between  Louis  XIV.  and  the  Hanseatic 
towns,  in  the  treaties  of  the  Pyrenees  and  Utrecht,  and  in  the 
Treaty  of  Versailles,  1786.  The  writers  of  the  eighteenth  century 
were  as  inconsistent  in  their  theories  as  the  age  was  in  its  practice. 

1  Dumont,  Corps  universel  diplomatique,  etc.,  VI.,  ii.  3.,  and  VI.,  ii.  125. 


CORTSTELITTS  VAN  BYNKERSHOEK  411 

Thus  Heineccius,1  writing  in  1721,  regarded  as  contraband  not 
only  arms  and  munitions,  saltpetre,  and  horses,  but  also  cordage, 
sails,  and  other  naval  stores,  and  further  included  provisions. 

Bynkershoek  refers  to  Grotius'  threefold  classification  of 
objects — (1)  those  useful  for  purposes  of  war ;  (2)  those  not  so 
useful ;  (3)  those  which  may  be  used  either  in  war  or  peace  ;  and 
says  that  there  is  no  doubt  as  to  (1)  and  (2).  As  to  (3)  Grotius 
permits  the  intercepting  of  res  ancipitis  vel  promiscui  usus,  but 
only  in  case  of  necessity,  and  then  under  the  obligation  of  sub- 
sequent restitution.  But  Bynkershoek  points  out  that  the  diffi- 
culty is  in  determining  who  is  to  be  judge  of  that  necessity — 
"...  Quis  arbiter  erit  ejus  necessitatis,  nam  facUlimum  est  earn 
prsetexere  " — that  it  is  against  law  to  sit  as  judges  in  our  own 
cause,  and  further  that  Grotius'  distinction  is  not  supported  by 
the  usage  of  nations.  His  own  definition  is:  "Contraband 
articles  are  such  as  are  proper  for  war,  and  it  is  of  no  consequence 
whether  or  not  they  are  of  any  use  out  of  war."2  Are  the  mate- 
rials themselves  contraband,  out  of  which  contraband  articles 
are  made  ?  Zouche3  inclines  to  this  opinion  ;  but,  says  Bynker- 
shoek, reason  and  usage  point  to  the  contrary — "  ego  non  essem, 
quia  ratio  et  exempla  me  moveant  in  contrarium."4  If  all  such 
materials  are  prohibited,  the  catalogue  of  contraband  goods  will 
be  enormous,  amounting  to  a  total  prohibition  of  commerce.5 
However,  certain  articles  may  be  decreed  contraband,  not  from 
their  intrinsic  nature,  but  from  other  special  circumstances — e.g., 
from  the  large  quantity  required,  such  as  saddles,  holsters,  belts  ; 
or  in  anticipation  that  prohibiting  certain  articles  will  quickly 
bring  the  war  to  an  end — e.g.,  provisions,  when  the  enemy  is 
besieged  ;6  or  generally  those  articles  without  which  the  enemy 
could  not  possibly  continue  the  war.  He  states  that  the  last  two 
exceptions  accord  with  the  decrees  of  the  States-General  of 
December  5,  1652,  against  the  English,  and  of  December  31,  1657, 
against  the  Portuguese.  As  to  the  decree  of  May  6,  1667,  against 
Sweden,  there  was  a  special  reason — viz.,  the  right  of  retaliation, 

1  De  Nav.  ob  Vect.  Merc.  Vetit.,  xiv. 

"  Contra  banda  dici,  quse  uti  stint,  bello  apt  a  esse  possunt,  nee  quicquam 
interesse,  an  et  extra  bellum  usum  prsebeant  "  (c.  x.). 

3  Op.  cit.,  Part  2,  §  8,  Quest.  8. 

4  C.  x.,  p.  182. 

"  Si  omnem  materiam  prohibeas,  ex  qua  quid  bello  aptari  possit,  ingens 

esset  catalogus  rerum  prohibitarum,   quia  nullo  fere  materia,  ex  qua  non 

saltern  aliquid,    bello   aptum,   facile  fabricemus.     Haec  interdicta,   tantum 

non  omni  commercio  interdicimus,  quod  valdc.  esset  inutile  "  (c.  x.,  II.,  182). 

6  C.  ix.,  p.  180. 


412  CORNELIUS  VAN  BYNKERSHOEK 

as  therein  expressed — for  prohibiting  even  materials  not  them- 
selves fit  for  purposes  of  war,  but  which  might  be  so  adapted. 
Zouche  relates  that  there  was  a  dispute  between  England  and 
Spain  regarding  tobacco,  which,  Spain  contended,  might  be  used 
for  preserving  provisions  ;  but  Bynkershoek  repudiates  the  action 
of  Spain,  as  tobacco  cannot  be  of  any  use  in  destroying  the 
enemy.  The  tendency  of  Bynkershoek  is  clearly  to  lay  down  a 
definite  rule  restricting  contraband,  but  finding  that  it  would  be 
opposed  to  the  practice  of  his  own  country,  and,  indeed,  of  the 
European  countries  in  general,  he  seeks  to  extract  from  such 
usage  and  from  the  circumstantial  dispositions  of  treaties  certain 
exceptional  rules,  which  all  but  destroy  the  force  of  his  funda- 
mental principle.  But  great  difficulties  in  connection  with 
contraband  were  met  with  in  later  times,  and  there  is  by  no 
means  unanimity  of  opinion  at  present.  The  First  and  Second 
Armed  Neutrality  of  1780  and  1800  endeavoured  to  limit  the 
kinds  of  articles  that  could  be  regarded  as  contraband,  but  they 
failed ;  and  the  Declaration  of  Paris  of  1856  makes  use  of  the 
term  "  contraband  "  without  any  attempt  to  define  it. 

Respecting  the  treatment  of  vessels  carrying  contraband, 
Bynkershoek  is  opposed  to  the  declarations  in  the  various  Dutch 
decrees  and  treaties  between  the  Peace  of  Westphalia  and  the 
Treaty  of  Utrecht,  according  to  which  only  the  contraband  goods 
were  to  be  confiscated  and  the  vessels  carrying  them  allowed  to 
go  free.  His  doctrine,  an  application  of  the  Roman  law2  and 
followed  by  many  eminent  jurists  amongst  his  successors,  was 
that  though  the  owner  or  master  was  unaware  of  the  illegal 
nature  of  the  cargo,  the  vessel  also  could  be  justly  seized.  Further, 
if  the  cargo  consist  of  a  mixture  of  lawful  goods  and  contraband, 
and  both  belong  to  the  same  owner,  the  whole  may  be  condemned  ; 
if  they  belong  to  different  owners,  then  the  illegal  act  of  one  ought 
not  to  affect  the  legal  act  of  the  other.  This  is  in  full  agreement 
with  the  rule  laid  down  by  Zouche.3  By  a  French  ordinance  of 
July  26,  1778,  only  contraband  goods  were  to  be  confiscated, 
unless  they  amounted  to  three-quarters  of  the  entire  cargo,  in 
which  case  the  whole  merchandise  would  be  condemned,  as  well 
as  the  ship.  Art.  17  of  the  treaty  between  Great  Britain  and 
the  United  States,  November  19,  1794,  stipulated  "that  in  all 
cases  where  vessels  should  be  captured  or  detained  on  just  sus- 

1  Of.  Lesour,  op.  cit.,  p.  104.  2  Dig.  III.,  tit.  iv. 

3  Op.  cit.,  Part  II.,  §  8,  Quest.  13. 


CORNELIUS  VAN  BYNKERSHOEK  413 

picion  of  having  on  board  enemy's  property,  or  of  carrying  to 
the  enemy  any  of  the  articles  which  are  contraband  of  war,  the 
said  vessel  should  be  brought  to  the  nearest  and  most  convenient 
port ;  and  if  any  property  of  an  enemy  should  be  found  on  board 
such  a  vessel,  that  part  only  which  belonged  to  the  enemy  should 
be  made  prize,  and  the  vessel  should  be  at  liberty  to  proceed  with 
the  remainder  without  any  impediment." 

Blockade. — Bynkershoek  holds  that  everything  carried  to  a 
blockaded  or  besieged  place,  contrary  to  law  or  treaty,  is  to  be 
considered  as  contraband  and  treated  accordingly  ;  and  usage 
sanctions  the  infliction  of  the  capital  penalty  on  offenders,  or  a 
milder  punishment  according  to  the  circumstances  of  the  case. 
In  the  time  of  Vattel,  however,  a  milder  policy  prevailed ;  such 
offenders  could  be  regarded  as  enemies,  but  usually  only  then- 
goods  were  confiscated.  Earlier  in  the  work,  Bynkershoek  says 
that  retaliation  is  to  be  exercised  only  on  the  offending  party — 
"  retorsio  non  est  nisi  ad  versus  eum  qui  ipse  damni  quid  dedit,  ac 
deinde  patitur,  non  vero  ad  versus  communem  amicum  "  ;x  but 
here  he  maintains  that  an  injury  inflicted  on  a  neutral  is  justifiable 
on  the  principle  of  retaliation  upon  the  enemy — a  view  adopted 
hi  consequence  of  the  edicts  of  the  States-General  against  the 
Spaniards.  The  rules  as  to  what  vessels  may  be  captured  he 
derives  from  an  examination  of  the  famous  Dutch  decree  of  1630, 
which  presents  the  first  systematic  State  legislation  governing 
the  question  of  blockade.  "Le  decret  hollandais  du  26  juin 
1630  promulgue  deja  avant  1'independance,  dans  le  but  de  regler 
un  blocus  des  ports  de  Flandre  relevant  de  la  domination  espagnole, 
est  considere  comme  la  premiere  legislation  nationale  du  blocus 
moderne.  En  effet,  on  y  trouve  ses  premieres  regies  definies."2 
Thus  the  following  vessels  may  be  captured  and  confiscated  : 
(1)  Those  found  so  near  to  the  blockaded  ports  as  to  show  clearly 
an  intention  to  enter  therein,  unless  it  appears  that  they  were 
driven  there  by  stress  of  weather ;  (2)  those  found  at  a  distance  from 
the  ports,  but  whose  papers  indicate  an  intention  to  enter,  unless 
before  the  offence  is  committed  they  alter  their  course  of  their 
own  accord  ;3  (3)  those  vessels  issuing  from  such  ports,  not  having 
been  forced  thither  by  stress  of  weather,  even  though  taken  at 
distance  :  unless  after  leaving  the  ports  they  had  performed  a 

1  C.  iv. 

2  R.  Kleen,  Lois  el  usages  de  la  neutralite  (2  vote.,  Paris,  1898-1900),  L,  643. 

3  In  his  case  Bynkershoek  is  not  fully  determined  ;  for  the  matter  is  to  be 
decided  according  to  conjectures  and  circumstances, 


414  CORNELIUS  VAN  BYNKERSHOEK 

voyage  to  a  port  of  their  own  country,  or  to  some  other  neutral 
port ;  but  liable  to  confiscation  if  on  issuing  from  the  blockaded 
port  they  are  pursued  to  their  own  or  to  any  other  port,  and  after- 
wards found  on  the  high  sea  coming  out  of  the  latter  port. 

Bynkershoek  admits  the  rigorous  character  of  these  rules,  but 
he  says  the  severity  may  be  relaxed,  if  thought  fit,  and,  indeed, 
has  often  been  relaxed.  "  Sed  mutatis  hominibus  sententias 
mutariquid  obstat  ?'!1  He  states  further  that  the  above  decree 
was  put  into  effect  by  the  application  of  a  sufficient  force  to  main- 
tain the  blockade ;  and  does  not  make  any  suggestion  that  a 
blockade  by  proclamation,  or  a  "  paper  blockade,"  could  lawfully 
impose  any  restriction  on  neutral  commerce.  Actual  practice  in 
the  seventeenth  century  was  very  changeable,  and  was  often 
adapted  to  the  demands  of  self-interest ;  and  Bynkershoek 
repudiates  the  inconsistency  in  the  conduct  of  his  own  country. 

Neutral  Goods  on  Enemy's  Vessels. — The  two  cases  of  neutral 
goods  on  an  enemy's  vessel,  and  an  enemy's  goods  on  a  neutral 
vessel,  are  considered  in  a  more  liberal  manner  than  had  been 
done  before,  and  often  in  antagonism  to  Dutch  policy.  At  the 
tune  he  wrote  three  systems2  had  been  developed  :  (1)  the  doctrine 
of  "  hostile  infection,"  represented  by  the  French  ordinances  of 
the  sixteenth  century,  of  1681,  and  of  1704,  by  which  ships  and 
goods  connected  in  any  way  with  enemy's  goods  or  vessels  were 
condemned  ;  (2)  the  rule  of  the  Consolato  del  Mare  (suum  cuique), 
by  which  only  the  enemy's  property,  vessel  or  cargo,  was  seizable, 
and  a  neutral  vessel  was  not  necessarily  regarded  in  the  light  of 
neutral  territory ;  (3)  the  rule  of  Utrecht,  the  principle  of  which 
is  free  vessel  free  goods,  enemy  vessel  enemy  goods — that  is,  liberty 
or  condemnation  depends  only  on  the  nationality  of  the  carrying 
vessel. 

Bynkershoek  does  not  accept  the  rule  of  Utrecht ;  one  or  two 
special  treaties,  he  insists,  are  not  necessarily  evidence  of  inter- 
national law.  The  rule  that  neutral  goods  found  on  an  enemy's 
vessel  may  be  condemned  is  contrary  to  reason ;  at  most  it  is 
only  a  presumption  that  they  belong  to  the  enemy,  as  Grotius 
also  thinks.  They  cannot  be  confiscated  even  if  the  shipper  knew 
it  was  the  enemy's  vessel.  The  essential  criterion  is — Have  I, 
in  shipping  the  goods,  intended  to  do  you  an  injury  ?  The 
various  questions  as  to  whether  the  owner  of  the  merchandise 

1  C.  xi.,  p.  185. 

2  See  J.  Delpech,  Bynkershoek,  in  Les  fondateurs  du  droit  international 
(Paris,  1904),  pp.  386-446  ;  and  Thonier,  op.  cit.,  p.  77. 


CORNELIUS  VAN  BYNKERSHOEK  415 

on  the  enemy's  vessel  knew  of  the  war  or  not,  and  whether,  know- 
ing this,  he  knew  his  conduct  to  be  legal  or  not — all  these  fine- 
spun niceties  may  indicate  legal  ingenuity,  but  will  not  satisfy 
unsophisticated  common  sense.  "  Sed  hse  sunt  pragmaticorum 
lautitise,  quibus  indoctum  vulgus  excipiunt." l  He  is  largely  in 
agreement  with  the  Consolato  del  Mare,  by  which  the  enemy's 
vessel  is  seizable,  but  the  neutral  goods  on  board  must  be  returned 
to  their  owners ;  he  differs  in  not  allowing  freight  should  the 
vessel  be  carried  into  the  captor's  port.2 

In  the  case  of  enemy's  goods  found  on  a  neutral  vessel,  he  is 
against  the  principle  of  hostile  infection,  and  agrees  with  that  of 
the  Consolato  del  Mare.  The  enemy's  goods  may  be  seized,  but 
the  neutral  vessel  must  go  free,  unless,  of  course,  the  owner  was 
aware  that  the  cargo  was  contraband.  The  right  of  visitation 
and  search  is  allowed.  It  is  lawful  to  detain  the  vessel,  and  to 
ascertain,  not  merely  by  the  flag,  which  may  be  fraudulently 
assumed,  but  by  the  documents  on  board,  whether  she  is  really 
neutral,  and  whether  enemy's  property  is  concealed  therein.3 
In  a  word,  a  neutral  commits  no  offence  against  the  laws  of 
nations  in  carrying  enemy's  goods,  which  are  seizable  ex  re,  the 
neutral  vessel  going  free  ;  but  to  carry  contraband  is  an  offence 
ex  delicto,  and  hence  both  the  contraband  goods  and  the  vessel 
are  liable  to  confiscation. 

As  to  privateering,  Bynkershoek  is  severer  than  Gentilis  or 
Grotius  ;  though  he  deprecates  the  defence  of  necessity  which  is 
often  put  forward  in  the  subordination  of  neutral  rights  to  those 
of  belligerents.  If  a  privateer  makes  an  illegal  capture,  the 
captain  is  liable  for  the  damage  suffered,  should  he  have  exceeded 
his  authority ;  but  if  he  has  acted  according  to  his  authority 
then  the  owners  of  the  vessel  are  liable  for  all  damage,  whether 
the  captain  is  dishonest  or  unskilful.  The  owners  of  the  vessel 
are  not  liable  if  they  have  not  appointed  the  master  for  the 
purpose  of  making  captures.  If  a  vessel  is  not  a  privateer — i.e., 
has  no  commission — and  makes  captures  by  order  of  the  owners, 

1  C.  xiii.,  p.  187. 

2  Ibid.,  p.  188.     (Of.  the  opinions  of  Heinoccius,  De  nav.  ob  vect.  vetit, 
etc.,  c.  ii.,  §  ix.)     In  The  Fortuna,  the  captor  of  an  enemy's  vessel  was  held 
not  entitled  to  freight  on  neutral  goods  unless  he  took  them  to  the  port  of 
destination ;  in  The  Diana,  freight  was  allowed  in  certain  cases,  where  the 
cargo  was  taken  to  the  claimant's  own  country. 

3  "  Eatenus  utique  licitum  esse  amicam  navem  sistere,  ut  non  ex  fallaci 
forte  aplustri,  sed  ex  ipsis  instrumentis,   in  navi  ropertis,   constet  navem 
amicam  osso  .  .  .  ot  inde  discere,  an  qua)  hostium  bona  in  nave  lateant  " 
(c.  xiv.,  pp.  188-9). 


416  CORNELIUS  VAN  BYNKEESHOEK 

the  same  rules  apply  as  though  she  were  a  regular  privateer. 
Should  a  non-commissioned  vessel,  attacked  by  an  enemy,  capture 
the  enemy's  vessel,  the  prize  belongs  to  the  master  as  captor — 
"...  constat  praedam  quicunque  ceperit,  solius  capientis  esse, 
nisi  ex  praepositione  et  mandate  aliorum  ceperit "  ;x  this  is  an 
application  of  the  general  doctrine  of  principal  and  agent. 
When  a  prize  is  taken  by  one  or  more  armed  private  ships, 
others  being  present  but  not  assisting,  the  prize  belongs  only 
to  him  who  has  fought  and  conquered  the  enemy's  vessel ;  but 
in  case  vessels  of  war  are  present,  it  is  permissible  to  enact  a 
different  law.2 

A  few  other  questions  are  considered,  such  as  piracy,  the 
insurance  of  vessels  liable  to  capture,3  the  authority  of  prize  courts, 
whose  judgment  if  manifestly  unjust  cannot  be  enforced,  and  the 
remedy  by  letters  of  reprisal  ;4  and  finally,  the  De  rebus  betticis,  a 
remarkable  work  of  permanent  value,  the  work  of  a  sound  legally- 
disposed  mind,  concludes  with  a  wise  reflection  on  war,  and  the 
frequently  alleged  "reason  of  State,"  that  "monstrum  horren- 
dum,  informe,  ingens,  cui  lumen  ademptum  "  :  "If  governments 
will  yield  to  that  monster  and  indulge  themselves  by  following 
its  dictates  and  consider  the  property  of  other  nations  as  their 
own,  it  is  idle  to  investigate  further  the  law  of  nations  and  discuss 
its  principles."5 

1  0.  xx.,  p.  199. 

2  Sir  W.  Scott  held — the  same  principles  being  adopted  in  the  French 
ordinances  of  January  27,  1706,  and  June  15,  1757 — that  mere  presence  in 
the  case  of  a  privateer  is  not  sufficient  to  raise  the  presumption  of  co-operation 
in  order  to  be  entitled  to  a  share  of  the  prize  (L'Amitie,  6  Rob.,  261),  but  in 
the  case  of  a  vessel  of  war  it  was  sufficient  to  support  the  animus  capiendi 
(The  Flore,  5  Rob.,  270). 

3  C.  xxi. 

4  C.  xxiv.  (cf.  Treaty  of  Ilhyswick,  Art.  9,  and  Treaty  of  Utrecht,  Art.  16). 

5  C.  xxv.,  p.  209. 


MOHTESOUIEU 


MONTESQUIEU 


MONTESQUIEU l 

>VHEN  Sainte-Beuve  sat  down,  in  the  year  1852,  to  write  a  causerie 
ibout  Montesquieu,  he  gave  as  a  reason  for  not  having  dealt 
ftdth  the  subject  before  that  Montesquieu  belonged  to  the  class 
)f  men  whom  one  approaches  with  apprehension  on  account  of 
/he  respect  which  they  inspire,  and  of  the  kind  of  religious  halo 
,vhich  has  gathered  round  their  names. 

This  was  written  more  than  fifty  years  ago,  and  the  language 
•effects  the  glamour  which  still  attached  to  Montesquieu's  name 
luring  the  first  half  of  the  nineteenth  century.  That  glamour 
tias  now  passed  away.  Not  that  Montesquieu  has  died,  or  is 
ikely  to  die.  But  he  is  no  longer  the  oracle  of  statesmen  ;  his 
Spirit  of  Laws  is  no  longer  treated  by  framers  of  constitutions 
as  a  Bible  of  political  philosophy,  bearing  with  it  the  same  kind 
3f  authority  as  that  which  Aristotle  bore  among  the  schoolmen, 
rhat  authority  ended  when  the  greater  part  of  the  civilized 
ivorld  had  been  endowed  with  parliamentary  and  representative 
nstitutions  framed  more  or  less  on  the  model  which  Montesquieu 
tiad  described  and  had  held  up  for  imitation.  The  interest  which 
attaches  to  him  now  is  of  a  different  order.  It  is  literary  and 
historical.  He  lives  as  one  of  the  greatest  of  French  writers,  and 
tiis  Considerations  on  the  Greatness  and  Decay  of  the  Romans  are 
still  read  as  a  school  classic  by  French  boys  and  girls,  much  as  the 
masterpieces  of  Burke  are,  or  ought  to  be,  read  in  English  schools. 
To  the  student  of  political  history  he  is  known  as  the  source  of 
ideas  which  exercised  an  influence  of  incomparable  importance 
in  the  framing  of  constitutions  both  for  the  old  and  for  the  new 
continent.  And  for  the  student  of  political  science,  his  work 
marks  a  new  departure  in  methods  of  observation  and  treatment, 
rhe  Spirit  of  Laws  has  been  called  the  greatest  book  of  the 
eighteenth  century :  its  publication  was  certainly  one  of  the 
greatest  events  of  that  century. 

If  it  were  necessary  for  me  to  offer  an  apology  for  taking 
1  Delivered  as  The  Romanes  Lecture  at  Oxford,  1904. 

417  28 


418  MONTESQUIEU 

Montesquieu  as  my  subject  to-day  I  might  plead,  first,  that  no 
student  of  history  or  of  political  or  legal  science  can  afford  to 
disregard  one  who  has  been  claimed,  on  strong  grounds,  as  a 
founder  of  the  comparative  method  in  its  application  to  the  study 
of  Politics  and  of  Law;  next,  that  some  recent  publications1 
have  thrown  new  and  interesting  light  both  on  his  character  and 
on  his  methods  of  work;  and  lastly  that  one  cannot  return  too 
often  to  the  consideration  of  a  really  great  man.  Moreover,  it 
may  be  suspected  that,  in  this  country  at  least,  and  at  the  present 
day,  Montesquieu  belongs  to  the  numerous  class  of  authors 
whom  everybody  is  supposed  to  know  but  whom  very  few  have 
read.  It  will,  of  course,  be  impossible  for  me  to  do  more  than 
touch  on  a  few  of  the  aspects  of  such  a  many-sided  man. 

Let  me  begin  by  reminding  you  of  the  leading  dates  and  facts 
in  Montesquieu's  life,  so  far  only  as  is  necessary  for  the  purpose 
of  "placing  "  him  historically.2  Charles  Louis  de  Secondat  was 
born  in  1689,  a  year  after  the  Revolution  which  ended  the  Stuart 
dynasty,  five  years  before  the  birth  of  Voltaire,  100  years  before 
the  outbreak  of  the  French  Revolution.  He  died  in  1755,  four 
years  after  the  publication  of  the  first  volume  of  the  French 
Encyclopedia,  the  year  before  the  Seven  Years'  War,  five  years 
before  George  III.  came  to  the  throne,  and  seven  years  before 
Rousseau  preached  to  the  world,  in  the  first  chapter  of  his  Social 
Contract,  that  man  is  born  free  and  is  everywhere  in  chains. 

1  The  Collection  Bordelaise  referred  to  in  note  2. 

2  The  fullest  life  of  Montesquieu  is  that  by  L.  Vian,  Histoire  de  Montesquieu, 
Paris,   1878.     But  it  is  inaccurate  and  uncritical,  and  has  been  severely 
criticized  by  M.  Brunetiere  (Revue  des  deuyc  Mondes,  1879).     The  best  con- 
temporary  appreciation   of   Montesquieu   is   by   the   Marquis   d'Argenson 
(Memoires,  p.  428,  edition  of  1825).     The  standard  edition  of  Montesquieu 
is  that  by  Laboulaye  in  7  vols.,  Paris,  1873-9.     This  must  now  be  supplemented 
by  the  "  Collection  Bordelaise,"  which  contains  further  materials  supplied  by 
the  Montesquieu  family,  and  which  includes  Deuyc  opuscules  de  Montesquieu, 
1891  ;  Melanges  inedits  de  Montesquieu,  1892  ;  Voyages  de  Montesquieu,  2  vols., 
1894;  Pensees  et  fragments  inedits,  2  vols.,  1899,  1901.     The  literature  on 
Montesquieu  is  very  extensive.     A  list  of  books,  articles,  and  eloges  relating 
to  him  will  be  found  in  an  appendix  to  Vian's  Histoire.     Among  subsequent 
works  the  first  place  is  taken  by  M.  Sorel's  Montesquieu  in  the  series  called 
Les  grands  ecrivains  francais,  a  little  book  of  which  I  can  only  speak  with 
the  most  respectful  admiration.     Reference  may  also  be  made  to  Oncken, 
Zeitalter  Fricdrichs  des  Grossen,  i.  80,  457  ;  Taine,  Ancien  Regime,  pp.  264,  278, 
339  ;  Janet,  Histoire  de  la  science  politique,  vol.  ii.  ;  Faguct,  Dix-huitieme 
siecle  ;  Faguet,  La  politique  comparee  de  Montesquieu,  Rousseau  et  Voltaire  ; 
Brunetiere,  Etudes  critiques  sur  Vhistoire  de  la  litterature  francaise,  4"1C  serie  ; 
Flint,  The  Philosophy  of  History,  262-79  ;  Sir  Leslie  Stephen,  'English  Thought 
in  the  Eighteenth  Century,  i.  186  ;  Henry  Sidgwick,  The  Development  of  Euro* 
pean  Polity  ;  Sir  F.  Pollock,  History  of  the  Science  of  Politics. 


MONTESQmBU  419 

His  birth-place  was  the  Chateau  of  La  Brede,  a  thirteenth-century 
castle  some  ten  miles  from  Bordeaux.1  Thus  he  was  a  country- 
man of  Montaigne,  with  whom  he  had  many  affinities.  His 
family  was  noble,  and  belonged  to  that  more  modern  branch  of 
the  nobility  which  had  acquired  its  fortunes  from  the  exercise  of 
judicial  or  financial  functions,  and  which  was  known  as  the 
noblesse  de  la  robe.  Therefore  he  was  a  member  of  one  of  the  two 
privileged  classes  which  under  the  old  regime  owned  between  them 
some  two-fifths  of  the  soil  of  France,  and  were  practically  exempt 
from  all  the  burdens  of  the  State. 

On  his  mother's  death  he  was  sent  as  a  boy  of  seven  to  the 
Oratorian  College  at  Juilly  near  Meaux,  and  remained  there 
eleven  years.  He  then  studied  law,  and  in  1714,  at  the  age  of 
twenty-five,  was  made  counsellor  of  the  Parlement  of  Bordeaux, 
that  is  to  say  member  of  the  Supreme  Court  of  the  province  of 
Guienne.  In  the  next  year  he  married  a  Protestant  lady.  The 
following  year,  1716,  made  a  great  difference  in  his  fortunes. 
His  uncle  died,  and  he  succeeded  to  the  barony  of  Montesquieu, 
to  a  considerable  landed  property,  and,  above  all,  to  the  dignified 
and  lucrative  post  of  President  a  Mortier,  or  Vice-President,  of 
the  Parlement  of  Bordeaux,  a  post  which  the  uncle  had  acquired 
by  purchase,  and  which  the  nephew  retained  until  he  parted 
with  it  to  another  purchaser  in  1726.  His  judicial  duties  were 
such  as  to  leave  him  a  good  deal  of  leisure.  After  the  fashion  of 
his  time  he  dabbled  in  physical  science.  The  papers  which  he 
read  before  the  newly  established  Academy  of  Bordeaux  were  of 
no  scientific  value,  but  they  influenced  his  subsequent  political 
speculations,  and  supplied  a  sufficient  excuse  for  his  election 
during  his  English  visit  to  a  fellowship  in  our  Royal  Society.2 

1  Sixteen  and  a  half  miles  by  railway. 

2  He  was  elected  February  12,  1729  (old  style).     Proposed  by  Dr.  Teissier 
and  recommended  by  M.  Ste-Hyacynthe  and  the  President  (Sir  Hans  Sloane). 
He  refers  to  his  reception  in  a  letter  to  Pere  Cerati,  dated  London,  March  1, 
1730  (new  style).     Among  the  documents  of  the  Royal  Society  is  the  copy  of 
a  letter  from  Montesquieu  to  Sir  Hans  Sloane,  dated  Paris,  August  4,  1734, 
and  enclosing  copies  of  his  book  on  the  Grandeur  et  decadence  des  Romains. 
The  M.  Ste-Hyacynthe,  who  figures  as  Montesquieu's  backer,  must  have  been 
the  "  Themiseul  de  Ste-Hyacinthe,  the  half -starved  author  of  the  Chef-d'oeuvre 
d'un-  inconnu,  who,  after  having  served,  if  we  may  believe  Voltaire,  as  a 
dragoon  during  the  persecution  of  the  French  Protestants,  had  crossed  over  to 
England,  there  had  been  converted,  had  translated  Robinson  Crusoe,  and  though 
always  a  destitute  wanderer,  had  been  nominated  a  member  of  the  Royal 
Society  of  London  "  (Texte,  Jean- Jacques  Rousseau,  and   the  Cosmopolitan 
Spirit  in  Literature,  translated  by  J.  W.  Matthews,  p.  18).     The  English  trans- 
lation of  this  book  embodies  additions  to,  and  corrections  of,  the  original  work 


420  MONTESQUIEU 

His  real  interests  lay  neither  in  law  nor  in  physics,  but  in  the 
study  of  human  nature.  His  first  book,  the  Persian  Letters, 
appeared  in  1721.  He  resigned  his  judicial  office  in  1726,  and 
became  a  member  of  the  Academic  franpiise  at  the  beginning 
of  1728.  The  next  three  years  were  spent  in  travel,  and  his 
travels  ended  with  a  stay  of  nearly  two  years  in  England.  The 
Grandeur  et  decadence  des  Remains  appeared  in  1734,  and  the 
Esprit  des  lois  in  1748.  He  died,  as  I  have  said,  in  1755. 

His  personal  appearance  is  known  to  us  from  the  excellent 
medallion  portrait  by  Dassier,  executed  in  1752.  Aquiline 
features,  an  expression  subtle,  kindly,  humorous.  He  was 
always  short-sighted,  and  toward  the  end  of  his  life  became 
almost  entirely  blind.  "You  tell  me  that  you  are  blind,"  he 
writes  to  his  old  friend  Madame  du  Deffand,  in  1752 :  "Don't 
you  see  we  were  both  once  upon  a  time,  you  and  I,  rebellious 
spirits,  now  condemned  to  darkness  ?  Let  us  console  ourselves 
by  the  thought  that  those  who  see  clearly  are  not  for  that  reason 
luminous."1 

The  three  books  to  which  Montesquieu  owes  his  fame  are  the 
Persian  Letters,  the  Considerations  on  the  Greatness  and  Decay 
of  the  Romans,  and  the  Spirit  of  Laws.  Of  these  the  first  appeared 
during  the  Regency,  that  period  of  mad  revel  which  followed 
the  gloomy  close  of  Louis  XIV. 's  reign.  The  second  was  published 
under  the  ministry  of  that  aged  and  suspicious  despot,  Cardinal 
Fleury,  when  it  was  safer  to  speculate  about  ancient  history 
than  about  contemporary  politics  or  society.  The  last  appeared 
under  the  rule  of  Madame  de  Pompadour,  when  the  Encyclo- 
paedists had  begun  that  solvent  work  of  theirs  which  prepared 
the  way  for  the  French  Revolution.  It  should  be  added  that 
all  the  three  books  were  published  anonymously,  and  printed 
in  foreign  countries,  the  first  two  at  Amsterdam,  the  last  at 
Geneva. 

In  order  to  trace  the  origin  and  development  of  Montesquieu's 
conceptions,  and  the  course  and  tendency  of  his  thoughts,  the 
three  books  must  be  read  consecutively,  and  must  be  supple- 

1  The  Earl  of  Charlemont,  who,  as  a  young  man,  made  a  tour  through  the 
South  of  France,  either  in  1755,  or  in  the  latter  part  of  1754  (the  dates  are  not 
quite  clear),  has  left  a  delightful  description  of  a  visit  which  he  and  a  friend 
paid  to  Montesquieu  at  La  Brede.  He  found,  instead  of  a  "  grave,  austere 
philosopher,"  a  "  gay,  polite,  sprightly  Frenchman,"  who  took  his  visitors 
for  a  walk  through  his  grounds,  and  being  unable  to  find  the  key  of  a  pad- 
locked three-foot  bar,  solved  the  difficulty  by  taking  a  run  and  jumping  over 
it. — Hardy,  Memoirs  of  Earl  of  Charlemont,  i.  60-73. 


MONTESQUIEU  421 

mented  by  what  we  know  of  his  studies  and  experiences  during 
their  preparation .  For  this  knowledge  very  interesting  additional 
materials  have  been  supplied  by  the  recent  publication  of  the 
manuscripts  which  had  for  many  years  been  preserved  in  the 
family  archives  of  the  Montesquieu  family.  They  include  the 
journals  of  travel  which  Sainte-Beuve  said  he  would  sooner  have 
than  the  Spirit  of  Laws,  and  the  three  quarto  volumes  of  Pensees 
in  which  Montesquieu  stored  materials  for  his  published  works. 

The  Persian  Letters  supply  a  clue  to  the  plan  of  the  Spirit  of 
Laws,  and  contain  the  germs  of  many  of  the  ideas  which  were 
subsequently  developed  in  that  book.  They  are  the  work  of  a 
young  man.  They  profess  to  be  written,  and  were  probably 
composed  or  sketched,  at  different  dates  between  1711  and  1720,1 
that  is  to  say,  during  the  last  four  years  of  Louis  XIV.'s  reign, 
and  the  first  five  years  of  the  Regency,  and  they  describe  the 
impressions  of  three  Persians  who  are  supposed  to  be  travelling 
in  Europe  at  that  time.  There  is  an  elder,  Usbek,  who  is  grave 
and  sedate,  a  younger,  Rica,  who  is  gay  and  frivolous,  and  a  third, 
Rhedi,  who  does  not  appear  to  have  got  further  westward  than 
Venice. 

1  The  view  that  the  composition  of  the  Letters  extended  over  several  years 
is  confirmed  by  internal  evidence.  The  correspondence  changes  in  character 
as  it  goes  on.  Compare  for  instance  the  apologue  of  the  Troglodytes  in 
Letters  xii.  to  xiv.  with  the  speculations  as  to  the  origin  of  republics  in 
Letter  cxxxi.,  or  with  the  comparative  view  of  the  political  development  and 
characteristic  features  of  different  European  states  in  Letters  cxxxiii.  to  cxxxvii. 
The  Troglodytes  are  a  community  that  perished  through  disregard  of  the 
rules  of  equity,  but  was  restored  to  prosperity  by  two  wise  survivors  who 
preached  that  justice  to  others  is  charity  to  ourselves.  After  the  lapse  of  some 
generations  their  descendants,  finding  the  yoke  of  republican  virtue  too  hard, 
ask  for  a  king,  and  are  reproved  for  doing  so.  The  apologue  is  interesting 
because  it  contains  phrases  which  recur  and  ideas  which  are  developed  in  the 
Spirit  of  Laws.  But  it  is  very  youthful  and  abstract.  Between  the  date 
of  the  Troglodyte  letters  and  that  of  the  later  letters  the  writer  had  read 
much,  observed  much,  and  reflected  much.  Or  compare  again  the  story  of 
the  travellers  and  the  rabbit  with  the  later  observations  on  the  advantage 
of  having  more  than  one  religion  in  a  state  and  on  the  duty  of  respecting 
and  tolerating  each.  The  lively  personal  sketches  become  more  rare :  more 
space  is  devoted  to  the  discussion  of  serious  problems  such  as  the  causes  and 
effects  of  the  decrease  of  population  in  Europe  since  the  flourishing  days  of 
the  Roman  Empire.  The  writer  is  no  longer  content  with  noting  and  criti- 
cizing :  he  begins  to  draw  conclusions.  In  short,  the  feuilletonist  is  ripening 
into  the  philosophical  historian  and  the  political  philosopher.  But  at  this 
stage  his  political  philosophy  has  perhaps  not  advanced  beyond  the  point 
indicated  by  a  passage  in  Letter  Ixxxi. :  "  I  have  often  set  myself  to  think 
which  of  all  the  different  forms  of  government  is  the  most  conformable  to 
reason,  and  it  seems  to  me  that  the  most  perfect  government  is  that  which 
guides  men  in  the  manner  most  in  accordance  with  their  own  natural  tendencies 
and  inclinations." 


422  MONTESQUIETJ 

The  device  was  not  new,  but  it  had  never  been  employed  with 
such  brilliancy  of  style,  with  such  fine  irony,  with  such  audacity, 
with  such  fertility  of  suggestion,  with  such  subtlety  of  observa- 
tion, with  such  profundity  of  thought.  And  it  was  admirably 
adapted  for  a  writer  who  wished  to  let  his  mind  play  freely  on 
men  and  manners,  to  compare  and  contrast  the  religious,  political 
and  social  codes  of  different  countries,  to  look  at  his  manifold 
subject  from  different  points  of  view,  to  suggest  inferences  and 
reflections,  and  to  do  all  this  without  committing  himself  to  or 
making  himself  responsible  for  any  definite  proposition.  Any 
dangerous  comment  could  be  easily  qualified  by  a  note  which 
explained  that  it  merely  represented  the  Mahommedan  or  the 
Persian  point  of  view. 

There  were  a  great  many  dangerous  passages,  There  was  the 
famous  letter  about  the  Two  Magicians,  which  nearly  cost  Montes- 
quieu his  election  to  the  Academy. 

"The  king  of  France  is  the  most  powerful  prince  in  Europe. 
He  has  no  gold  mines,  like  his  neighbour  the  king  of  Spain,  but 
he  has  greater  riches,  because  he  draws  them  from  an  inex- 
haustible mine — the  vanity  of  his  subjects.  He  has  undertaken 
and  carried  on  great  wars  without  funds  except  titles  of  honour 
to  sell,  and,  through  a  prodigy  of  human  pride,  his  troops  have 
found  themselves  feared,  his  fortresses  built,  his  fleets  equipped. 
Moreover  he  is  a  great  magician.  His  empire  extends  to  the 
minds  of  his  subjects  :  he  makes  them  think  as  he  wishes.  If  he 
has  only  one  million  crowns  in  his  treasure-chest  and  he  wants 
two,  he  has  merely  to  tell  them  that  one  crown  is  equal  to  two, 
and  they  believe  it.  If  he  has  a  difficult  war  to  carry  on  and 
has  no  money,  he  has  merely  to  put  it  into  their  heads  that  a  piece 
of  paper  is  money,  and  they  are  convinced  at  once.  But  this  is 
no  such  marvel,  for  there  is  another  still  greater  magician,  who 
is  called  the  Pope,  and  the  things  which  he  makes  people  believe 
are  even  more  extraordinary." 

Then  there  was  the  description  of  the  old  king,  with  his  minister 
of  eighteen,  and  his  mistress  of  eighty,1  surrounded  by  a  swarm, 
of  invisible  enemies,  whom,  in  spite  of  his  confidential  dervishes 
he  could  never  discover.  There  were  many  references  to  religion, 
mostly  irreverent,  though  not  with  the  fierce  and  bitter  irrever- 
ence of  Voltaire.  Usbek  finds  imperfect  and  tentative  approxi- 

1  The  references,  of  course  exaggerated,  were  to  Barbezieux  and  Mme.  de 
Maintonon. 


MONTESQUIEU  423 

mations  to  Mahommedanism  in  many  of  the  Christian  dogmas 
and  rites,  and  ascribes  to  the  finger  of  Providence  the  way  in 
which  the  world  is  being  thus  prepared  for  general  conversion  to 
the  creed  of  Islam.  About  diversities  of  ceremonial  belief  he  has 
naturally  much  to  say.  "  The  other  day  I  was  eating  a  rabbit  at 
an  inn.  Three  men  who  were  near  me  made  me  tremble,  for  they 
all  declared  that  I  had  committed  a  grievous  sin,  one  because 
the  animal  was  impure,  and  the  second  because  it  had  been 
strangled,  and  the  third  because  it  was  not  a  fish.  I  appealed 
to  a  Brahmin,  who  happened  to  be  there,  and  he  said,  "  They  are 
all  wrong,  for  doubtless  you  did  not  kill  the  animal  yourself." 
"  But  I  did."  "  Then  your  action  is  damnable  and  unpardonable. 
How  did  you  know  that  your  father's  soul  has  not  passed  into 
that  poor  beast  ?" 

Neither  the  burning  question  of  the  Bull  Unigenitus,1  or  Law 
and  his  scheme,  is  left  untouched. 

He  pursues  a  somewhat  less  dangerous  path,  though  still  a 
path  paved  with  treacherous  cinders,  when  he  sketches,  after 
La  Bruyere's  manner,  contemporary  social  types,  the  "grand 
seigneur  "  with  his  offensive  manner  of  taking  snuff  and  caressing 
his  lap-dog,  the  man  "of  good  fortunes,"  the  dogmatist,  the 
director  of  consciences  who  distinguishes  between  grades  of  sin, 
and  whose  clients  are  not  ambitious  of  front  seats  in  Paradise, 
but  wish  to  know  just  how  to  squeeze  in.  There  are  also  national 
types,  such  as  the  Spaniard,  whose  gravity  of  character  is 
manifested  by  his  spectacles  and  his  moustache,  and  who  has 
little  forms  of  politeness  which  would  appear  out  of  place  in 
France.  The  captain  never  beats  a  soldier  without  asking 
his  permission ;  the  inquisitor  makes  his  apology  before 
burning  a  Jew.  In  a  more  serious  vein  is  the  description, 
so  often  quoted,  of  the  ruin  and  desolation  caused  by  the 
trampling  of  the  Ottoman  hoof.  No  law,  no  security  of 
life  or  property  :  arts,  learning,  navigation,  commerce,  all  in 
decay.  "In  all  this  vast  extent  of  territory  which  I  have 
traversed,"  says  the  Persian  after  his  journey  through  Asia 
Minor,  "  I  have  found  but  one  city  which  has  any  wealth,  and 
it  is  to  the  presence  of  Europeans  that  the  wealth  of  Smyrna 
is  due." 

The  success  of  the  Persian  Letters  was  brilliant  and  instant  a- 

1  Horace  Walpole  complained  once  that  he  found  life  in  England  so  dull 
that  he  must  go  to  Paris  and  try  and  amuse  himself  with  the  Bull  Unigenitus. 


424  MONTESQUIEU 

neous,1  and  Montesquieu  at  once  became  a  leading  personage 
in  Parisian  society.  He  took  lodgings  in  the  most  fashionable 
quarter,2  paid  his  devotions  to  Mile,  de  Clermont  at  Chantilly, 
was  a  favourite  guest  at  the  salon  of  the  Marquise  de  Lambert, 
and  through  these  influences  obtained,  though  not  without  a 
struggle,  a  seat  in  the  Academy.  But  he  was  dissatisfied  with  his 
reception  there,  and  made  up  his  mind  to  travel. 

In  the  year  1728,  when  Montesquieu  set  out  on  his  travels,  the 
international  politics  of  Europe  were  in  a  singularly  confused 
and  tangled  position.  Congress  after  congress,  treaty  after 
treaty,  succeeded  each  other  with  bewildering  rapidity  and  with 
little  permanent  effect.  In  Germany,  Charles  VI.,  the  last  male 
descendant  of  the  Hapsburgs,  had  recently  published  his  Prag- 
matic Sanction,  was  straining  every  nerve  to  secure  the  succession 
for  his  daughter  Maria  Theresa,  and  was  wrangling  with  the 
"  Termagant  of  Spain  "  for  the  reversion  of  the  Duchies  of  Modena 
and  Parma.  Frederick  William  of  Prussia  was  recruiting  his 
grenadiers,  holding  his  tobacco  parliaments,  and  negotiating 
his  double  marriage  project.  In  Italy,  the  commercial  republics 
of  Venice  and  Genoa  were  sinking  into  decay,  Piedmont  was 
emerging  as  a  military  power,  Florence  was  under  the  last  of  the 
Medici  Grand  Dukes.  In  England,  Walpole  had  secured  the  con- 
fidence of  the  new  king  through  the  influence  of  his  capable 
queen,  and  was  doing  his  best,  with  the  help  of  Cardinal  Fleury, 
to  maintain  the  peace  of  Europe. 

Montesquieu  started  from  Paris  in  April  in  tl.e  company  of 
Lord  Waldegrave,  Marshal  Berwick's  nephew,  who  had  recently 
been  appointed  ambassador  to  the  imperial  court  at  Vienna. 
He  travelled  through  Austria  and  Hungary,  thence  went  to 
Venice,3  visited  in  turn  all  the  petty  states  into  which  Italy 

1  "  Les  Lettres  Persanes  eurent  d'abord  un  debit  si  prodigieux  quo  les 
libraires  de  Hollande  mirent  tout  en  usage  pour  en  avoir  des  suites.     Us 
alloient  tirer  par  la  manche  tous  ceux  qu'ils  rencontroient ;  Monsieur,  disoient- 
ils,  faites-moi  des  Lettres  Persanes." — Pense.es,  Collection  Bordelaise,  i.  46. 

2  Vians  talks  about  his  having  joined  the  well-known  Entresol  Club.     But 
d'Argenson's  list  of  its  members  (Memoires,  p.  248,  edition  of  1825  ;  i.  93, 
edition  of  1859)  does  not  contain  his  name. 

3  The  well-known  story,  repeated  by  Vian,  of  the  trick  played  by  Lord 
Chesterfield  on  Montesquieu  at  Venice  seems  to  be  a  fable  (see  the  remarks 
in  the  preface  to  Montesquieu's  Voyages  in  the  Collection  Bordelaise,  i.,  p.  xxiv). 
It  may  perhaps  be  traced  to  a  gossipy  letter  written  by  Diderot  to  Mile. 
Voland  on  Sept.  5,  1762  (Diderot,  (Euvres,  xix.,  p.  127).      We  know  from  the 
Chesterfield  Letters  that  when  Montesquieu  was  at  Venice  (Aug.  16,  Sep.  14, 
1728)  Chesterfield  was  writing  to  Mrs.  Howard  and  Lord  Townshend  from 
the  Hague. 


MONTESQUIEU  425 

was  then  divided,  spent  several  months  at  Florence,  where  he 
devoted  himself  mainly  to  art,  and  made  even  a  longer  stay  at 
Rome,  to  which  he  returned  after  Naples.  Of  his  last  interview 
with  the  Pope  a  story  is  told,  for  which  one  could  wish  there  were 
better  evidence.1  The  Pope  expressed  a  wish  to  do  something 
for  his  distinguished  visitor,  and  at  last  offered  him  for  himself 
and  his  family  a  perpetual  dispensation  from  fasting.  The  next 
day  a  papal  official  called  with  a  bull  of  dispensation  made  out 
in  due  form,  and  an  account  of  the  customary  fees.  But  the 
thrifty  Gascon  waved  away  the  parchment.  "The  Pope  is  an 
honest  man,"  he  said  ;  "  his  word  is  enough  for  me,  and  I  hope 
it  will  be  enough  for  my  Maker." 

After  leaving  Italy  he  visited  Munich  and  Augsburg,  travelled 
by  Wiirtemberg  and  the  Rhine  countries  to  Bonn,  the  residence 
of  the  Elector  and  Archbishop  of  Cologne,  had  an  interview  with 
our  king  George  II.  at  Hanover,  explored  the  Hartz  country  (on 
whose  mines  he  wrote  a  paper),  and  thence  went  to  the  Low 
Countries.  At  the  Hague  he  met  Lord  Chesterfield,  who  was 
then  British  Ambassador,  and  was  on  the  point  of  taking  leave 
for  England,  where  he  hoped  to  be  made  Secretary  of  State. 
Montesquieu  sailed  with  him  in  his  yacht  on  the  last  day  of 
October,  1729,  and  remained  in  England  until  some  time  in 
1731. 

A  distinguished  German  historian,2  who  takes  a  rather  depre- 
ciatory view  of  Montesquieu,  says  that  he  travelled  rather  as  a 
tourist  than  as  a  student.  The  journals  of  travels  and  copious 
notes  which  have  been  recently  given  to  the  world  by  the  Mon- 
tesquieu family  do  not  bear  out  this  statement.  Probably  no 
man  ever  started  on  his  travels  better  equipped  by  reading  and 
observation,  or  with  a  more  definite  notion  of  what  he  wanted 
to  see,  hear,  and  know,  or  had  better  opportunities  for  finding 
out  what  was  most  worth  knowing. 

Montesquieu  had  already  travelled  in  imagination  through 
the  countries  which  he  was  to  visit  in  the  flesh.  In  one  of  the 
earlier  Persian  Letters,  written  long  before  Montesquieu  left 
France,  Rhedi  describes  his  sojourn  at  Venice.  "My  mind  is 
forming  itself  every  day.  I  am  instructing  myself  about  the 

1  The  story  is  told  by  Vian,  but  is  doubted  by  the  Editors  of  the  Voyages 
(Pref.,  p.  xxviii).     Vian  is  responsible  for  much  apocrypha.     But  apocryphal 
stories  are  of  historical  value  as  illustrating  Montesquieu's  reputation  among 
his  contemporaries. 

2  Oncken,  Zeitalter  Friedrichs  des  Qrossen,  i.  463. 


426  MONTESQUIEU 

secrets  of  commerce,  the  interests  of  princes,  the  forms  of  govern- 
ment. I  do  not  neglect  even  European  superstitions.  I  apply 
myself  to  medicine,  physics,  astronomy.  I  am  studying  the  arts. 
In  fact  I  am  emerging  from  the  clouds  that  covered  my  eyes  in 
the  country  of  my  birth." 

That  was  the  programme  sketched  out  in  advance,  and  he  had 
excellent  opportunities  for  carrying  it  out.  At  Vienna  he  spent 
"  delightful  moments  'n  with  that  great  captain,  Prince  Eugene 
of  Savoy.  At  Venice  he  had  long  conversations  with  two  famous 
adventurers,  the  Comte  de  Bonneval,  and  the  Scotchman,  Law. 
At  Rome  he  made  the  acquaintance  of  Cardinal  Alberoni  and  the 
exiled  Stuarts.  At  Modena  he  conversed  with  the  great  anti- 
quarian, Muratori.  In  England  Lord  Chesterfield's  introduction 
brought  him  at  once  into  the  best  political  and  social  circles. 
His  English  journals,  if  they  ever  existed,  are  lest,  and  for  our 
knowledge  of  his  English  experiences  we  are  mainly  dependent 
on  the  scanty  but  witty  Notes  on  England,  which  were  first  pub- 
lished in  1818,  and  on  the  numerous  references  to  English  books, 
persons  and  things  which  are  scattered  up  and  down  his  recently 
published  Pensees.  But  we  know  that  he  attended  some  exciting 
debates  in  Parliament,  and  we  know  also  how  profoundly  his 
study  of  English  institutions  influenced  the  Spirit  of  Laws. 

On  the  preparation  for  that  great  work  Montesquieu  was  en- 
gaged for  the  next  seventeen  years  of  his  life.  In  1 734  appeared 
the  Considerations  on  the  Greatness  and  Decay  of  the  Romans, 
which  might  be  treated  as  the  first  instalment  of  its  contents. 
MachiaveUi  had  treated  Roman  history  from  the  point  of  view  of 
a  practical  statesman,  and  had  used  it  as  a  storehouse  of  warnings 
and  examples  for  the  guidance  of  an  Italian  prince.  "  Chance," 
he  said,  "leaves  great  room  for  prudence  in  shaping  the  course 
of  events."  Bossuet  wrote  as  a  theologian,  and  sought  for 
evidence  of  "  the  secret  judgements  of  God  on  the  Roman  empire." 
Montesquieu  wrote  as  a  political  philosopher,  and  tried  to  find 
in  the  history  of  a  particular  state  the  application  of  certain 
broad  general  principles.  "It  is  not  fortune  that  rules  the 
world.  There  are  general  causes,  moral  or  physical,  on  which 
the  rise,  the  stability,  the  fall  of  governments  depend.  If  a  state 
is  ruined  by  the  chance  of  a  single  battle,  that  is  to  say,  by  a 
particular  event,  the  possibility  of  its  being  so  ruined  arises 
from  some  general  cause,  and  it  is  for  these  causes  that  the 
1  Letter  to  Abbe  de  Guasco  of  Oct.  4,  1752. 


MONTESQUIEU  427 

j historian  should  seek."  In  this  short  treatise  Montesquieu's 
style  perhaps  reaches  its  highest  level.  He  is  not  distracted  by  a 
multiplicity  of  topics  ;  the  greatness,  dignity  and  unity  of  his 
j  subject  gives  force,  character,  and  continuity  to  his  style.  His 
sentences  march  like  a  Roman  legion. 

"The  work  of  twenty  years."  So  Montesquieu  describes  the 
Spirit  of  Laws,  counting  in  his  three  years  of  travel.  And  he 
describes  also  how  the  scheme  of  the  book  originated,  and  how  it 
was  developed.  "I  began  by  observing  men,  and  I  believed 
that  in  their  infinite  diversity  of  laws  and  manners  they  were  not 
exclusively  led  by  their  fancies.  I  laid  down  general  principles, 
and  I  saw  particular  cases  yield  to  them  naturally.  I  saw  the 
histories  of  all  nations  appear  as  the  consequence  of  these  princi- 
ples, and  each  particular  law  bound  with  another  law,  or  proceed 
from  one  more  general.  ...  I  often  began  and  often  dropped 
the  work  :  I  followed  my  object  without  forming  a  plan.  I  was 
conscious  of  neither  rule  nor  exceptions  :  but  when  I  had  dis- 
covered my  principles,  everything  that  I  sought  came  to  me. 
In  the  course  of  twenty  years  I  saw  my  work  begin,  grow,  ad- 
vance, and  finish." 

What,  then,  are  the  principles  which  after  so  long  and  painful 
a  search,  Montesquieu  ultimately  found  ?  In  brief,  they  are 
these.  The  world  is  governed,  not  by  chance,  nor  by  blind  fate, 
but  by  reason .  Of  this  reason,  the  laws  and  institutions  of  different 
countries  are  the  particular  expressions.  Each  law,  each  institu- 
tion, is  conditioned  by  the  form  of  government  under  which  it 
exists,  and  which  it  helps  to  constitute,  and  by  its  relations  to 
such  facts  as  the  physical  peculiarities  of  the  country,  its  climate, 
its  soil,  its  situation,  its  size  ;  the  occupations  and  mode  of  life 
of  the  inhabitants,  and  the  degree  of  liberty  which  the  constitu- 
tion can  endure  ;  the  religion  of  the  people,  their  inclinations, 
number,  wealth,  trade,  manners  and  customs  ;  and  finally  by  its 
relations  to  other  laws  and  institutions,  to  the  object  of  the  legis- 
lator, to  the  order  of  things  in  which  it  is  established.  It  is  the 
sum  total  of  these  relations  that  constitutes  the  spirit  of  a  law. 
The  relativity  of  laws — that  is  Montesquieu's  central  doctrine. 
There  is  no  one  best  form  of  state  or  constitution  :  no  law  is  good 
or  bad  in  the  abstract.  Every  law,  civil  and  political,  must  be 
considered  in  its  relations  to  the  environment,  and  by  the  adapta- 
tion to  that  environment  its  excellence  must  be  judged.  If  you 
wish  to  know  and  understand  the  spirit  of  a  law,  its  essence,  its 


428  MONTESQUIEU 

true  and  inner  meaning,  that  on  which  its  vitality  and  efficiency 
depend,  you  must  examine  it  in  its  relations  to  all  its  antecedents 
and  to  all  its  surroundings.  This  is  the  theme  which  Montesquieu 
tries  to  develop  and  illustrate  in  the  course  of  his  book. 

He  begins  with  the  relations  of  laws  to  different  forms  of 
government.  There  are  three  kinds  of  government — republics, 
with  their  two  varieties  of  democracy  and  aristocracy,  monarchies, 
and  despotisms.  The  threefold  division  is,  of  course,  as  old  as 
Plato  and  Aristotle,  but  the  mode  of  distribution  is  new,  and  is 
not  easily  to  be  defended  on  scientific  grounds.  But  the  historical 
explanation  of  the  distribution  is  quite  simple.  Montesquieu 
was  thinking  of  the  three  main  types  of  government  with  which 
he  was  familiar  through  study  or  observation.  By  a  republic 
he  meant  the  city  states  of  the  Greek  and  Roman  world,  and 
also  such  modern  city  states  as  Venice  and  Genoa.  Monarchy 
was  the  limited  monarchy  of  the  West,  which  still  preserved 
traditions  of  constitutional  checks,  but  which  was,  in  most 
countries,  tending  to  become  absolute.  Despotism  was  the  un- 
bridled, capricious  rule  of  the  eastern  world. 

Each  form  of  Government  has  its  peculiar  principle  or  main- 
spring. The  principle  or  mainspring  of  democracy  is  virtue  (by 
which  he  practically  meant  "public  spirit"),  of  aristocracy 
moderation,  of  monarchy  honour,  of  despotism  fear.  These  are 
the  principles  which  must  be  borne  in  mind  in  framing  laws  for 
each  state.  Having  exhausted  this  branch  of  the  subject,  he  goes 
on  to  consider  laws  in  their  relation  to  the  military  force,  political 
liberty,  taxation,  church,  soil,  manners  and  customs,  commerce, 
finance,  religion.  It  is  under  the  heading  of  political  liberty  that 
are  to  be  found  the  first  of  the  two  famous  chapters  on  the  English 
constitution,  and  the  famous  arguments  on  the  necessity  for 
separating  the  three  powers,  legislative,  executive  and  judicial. 

Nothing  is  further  from  my  purpose  than  to  enter  on  a  detailed 
analysis  of  the  Spirit  of  Laws.  Indeed,  there  are  few  books 
which  it  is  less  profitable  to  analyze.  The  spirit  evaporates  in 
the  process.  The  value  of  the  book  consists,  not  in  the  general 
scheme  of  arrangement  and  argument,  which  is  open  to  much 
criticism,  but  in  the  subtle  observations  and  suggestions,  the 
profound  and  brilliant  reflections,  with  which  it  abounds.  And 
the  questions  which  are  of  most  interest  to  us  are,  first,  What 
was  the  cause  of  the  rapid  and  enormous  influence  which  the 
book  exercised  on  political  thought  in  all  parts  of  the  civilized 


MONTESQUIEU  429 

world  ?  and,  secondly,  What  was  the  nature  and  what  were  the 
main  effects  of  that  influence  ? 

But  before  passing  to  these  questions  I  should  like  to  touch 
on  one  or  two  points  which  must  be  borne  in  mind  by  all  who 
read  Montesquieu. 

In  the  first  place  he  was  an  aristocrat,  a  member  of  a  privileged, 
exclusive,  and  fastidious  class.  He  was  no  upstart  of  genius  like 
Voltaire,  who  could  be  insulted  with  impunity  by  a  sprig  of 
nobility.  He  belonged  to  a  good  family  and  moved  habitually 
in  the  best  society. 

His  milieu  and  his  point  of  view  were  different  from  those  of 
typical  bourgeois,  such  as  Marais  and  Barbier.  He  was  a  country 
gentleman,  and  was  fond  of  strolling  about  his  vineyards,  and 
talking  to  his  tenants  and  labourers.  "I  like  talking  to 
peasants,"  he  said;  "they  are  not  learned  enough  to  reason 
perversely."  But  his  attitude  towards  them  was  that  of  a  great 
Whig  nobleman  or  squire.  Of  their  feelings  and  points  of  view 
he  could  know  nothing.  The  third  estate,  which  was  nothing 
and  was  to  be  everything,  was  to  him,  for  most  purposes,  an 
unknown  world.1  But,  though  he  was  not  wholly  free  from 
the  faults  of  his  class  and  his  time,  he  was  a  great  gentleman,  with 
a  genuine  public  spirit,  a  genuine  love  of  liberty,  a  genuine  hatred 
of  oppression,  cruelty,  intolerance,  and  injustice.  Among  the 
three  great  political  thinkers  of  the  day,  Montesquieu  stands  for 
liberty,  as  Voltaire  stands  for  efficiency,  and  Rousseau  for 
equality.1  If  Lord  Acton's  projected  History  of  Liberty  had  ever 
seen  the  light,  Montesquieu  would  doubtless  have  been  among 
its  greatest  heroes. 

In  the  next  place  Montesquieu  belonged  to  a  hereditary  caste — 
the  caste  which  supplied  the  staff  of  judges  and  magistrates  for 
France.  Not  that  he  wrote  as  a  lawyer.  For  some  fourteen 
years  he  was  a  member  of  the  judicial  bench  known  as  the 
Parlement  of  Guienne,  and  in  that  capacity  administered  Roman 

1  "  On  turning  from  Montesquieu  to  Rousseau  we  may  fancy  that  we  have 
been  present  at  some  Parisian  salon,  where  an  elsgant  philosopher  has  been 
presenting  to  fashionable  hearers  conclusions  daintily  arranged  in  sparkling 
epigrams  and  suited  for  embodiment  in  a  thousand  brilliant  essays.  Sud- 
denly, there  has  entered  a  man  stained  with  the  filth  of  the  streets,  his  utter- 
ance choked  with  passion,  a  savage  menace  lurking  in  every  phrase,  and 
announcing  himself  as  the  herald  of  a  furious  multitude,  ready  to  tear  to 
pieces  all  the  beautiful  theories  and  formulas  which  stand  between  them  and 
their  wants." — Leslie  Stephen,  English  Thought  in  the  Eighteenth  Century, 
p.  191. 


430  MONTESQUIEU 

law,  such  of  the  Royal  Ordinances  as  extended  to  his  province, 
and  no  less  than  ten  different  local  customs.     But  he  did  not 
take  much  interest  in  the  technical  side  of  his  professional  work, 
and  it  may  be  doubted  whether  his  judgments,  if  reported,  would 
have  carried  more  weight  with  his  professional  brethren  than 
those  of  his  distinguished  predecessor  on  the  same  bench — 
Montaigne.    Nor  did  he  take  any  active  part  in  the  scientific 
work  in  which  the  great  French  lawyers  of  the  eighteenth  century 
were  engaged.     That  work  was  digesting,  expressing,  and  sys- 
tematically arranging  the  principles  of  the  customary  law  and  the 
modernized  Roman  law,  and  thus  collecting  the  materials  and 
preparing  the  framework  for  the  codes  of  the  revolutionary  and 
Napoleonic  eras.     The  leaders  in  this  work  were  the  great  Chan- 
cellor d'Aguesseau  and  Pothier.     But  Montesquieu  does  not,  so 
far  as  I  am  aware,  make  any  reference  to  Pothier  or  his  school 
at  Orleans,  and  his  relations  to  d'Aguesseau  were  scanty  and 
formal.    Indeed,  between  the  lively  President  and  the  grave 
Chancellor1  there  was  little  in  common.    If  Montesquieu  had  lived 
in  the  latter  half  of  the  nineteenth  century,  he  would  not,  we  may 
feel  sure,  have  got  on  with  Lord  Cairns.    It  was  Voltaire,  and  not 
Montesquieu,  that  preached  the  duty  of  unifying  French  law, 
and  Montesquieu's  personal  preference  would  probably  have  been 
for  diversity  rather  than  for  uniformity.     But  Montesquieu  was 
a  great  "  Parliamentarian  "  in  the  French  sense  of  the  word.    He 
attached  great  political  importance  to  the  existence  of  a  "  depot 
of  law,"  entrusted  to  the  custody  of  an  organized  independent 
body,  and  he  scandalized  Voltaire  by  defending  the  system  of 
purchasing  judicial  offices  as  the   best  practical  security  for 
judicial  independence. 

And  lastly  Montesquieu  wrote  with  the  Censor  and  the  Index 
always  before  his  eyes.  Hence  the  allusive  and  hypothetical 
style,  which  in  some  of  his  imitators  became  a  mannerism.  This 
characteristic  is  nowhere  better  illustrated  than  in  the  chapter 
on  the  English  constitution.  It  is  headed  "  Of  the  constitution 
of  England,"  but  the  text  of  the  chapter  consists  of  a  number  of 
"ifs  "  and  "oughts."  Such  and  such  an  arrangement  ought  to 
exist.  If  such  an  arrangement  were  made  it  would  lead  to 
political  liberty.  It  is  not  until  the  concluding  paragraphs  that 
the  English  are  specifically  mentioned,  and  then  only  in  a  guarded 

1  See  d'Argenson's  sketch  of  d'Aguesseau :  Memoires  (edition  of  1825), 
p.  152. 


MONTESQUIEU  431 

manner.  "It  is  not  for  me  to  examine  whether  the  English 
actually  enjoy  this  liberty  or  not.  It  is  sufficient  to  say  that  it  is 
established  by  their  laws,  and  I  seek  no  more."  In  Montesquieu's 
time  it  was  not  always  safe  to  dot  your  "*'s."  And  that  his 
nervousness  was  not  unfounded  is  shown  by  the  fact  that,  not- 
withstanding his  precautions,  his  book  found  its  way  on  to  the 
Index,  and  remained  for  two  years  under  the  ban  of  the  civil 
censor. 

And  now  to  come  back  to  the  main  problem.  How  was  it  that 
a  book  with  such  obvious  and  glaring  defects  exercised  an  in- 
fluence so  enormous  ?  The  leading  definitions  are  loose  and 
vague  ;  the  treatment  is  unmethodical  and  uncritical ;  half  the 
statements  of  facts  are  inaccurate  ;  half  the  inferences  are  mere 
guesses.  And  yet  it  changed  the  thought  of  the  world.  What 
is  the  explanation  of  this  paradox  ? 

Much,  no  doubt,  was  due  to  charm  of  style.  If  you  want  to 
be  read,  stiU  more  if  you  want  to  be  widely  read,  you  must  be 
readable.  In  Montesquieu's  time,  books  on  political  and  legal 
science  were,  as  a  rule,  unreadable.  But  the  Spirit  of  Laws 
was,  and  still  is,  an  eminently  readable  book.  No  one  before 
Montesquieu  had  dealt  in  so  lively  and  brilliant  a  manner  wilh 
the  dry  subject  of  laws  and  political  institutions.  The  book 
reflects  the  personality  of  the  writer.  His  personality  is  not 
obtruded  in  the  foreground,  like  that  of  Montaigne,  but  it  is 
always  present  in  the  background,  and  its  presence  gives  a  human 
interest  to  an  abstract  topic .  You  see  the  two  sides  of  the  author  ; 
the  favourite  guest  of  Parisian  salons,  and  the  solitary  student, 
the  desultory  and  omnivorous  reader.  He  lived,  we  must  re- 
member, in  an  age  when  conversation  was  cultivated  as  a  fine 
art.  That  untranslatable  word  "esprit,"  which  was  in  the 
mouth  of  every  eighteenth-century  Frenchman,  meant,  in  its 
narrowest  and  most  special  sense,  the  essence  of  good  conversa- 
tion.1 Montesquieu  had,  like  other  Frenchmen  of  his  time, 
thought  much  about  the  art  of  conversation,  and  had  practised 
it  in  the  best  salons — where,  however,  he  had  the  reputation  of 
being  more  of  a  listener  than  a  talker — and  the  rules  that  he 

1  "  L'esprit  do  conversation  cst  cc  qu'on  appcllo  do  1'esprit  parmi  les 
Fran9ais.  II  consiste  a  (sic)  un  dialogue  ordinairement  gai,  dans  lequel 
chacun,  sans  s'ecouter  beaucoup,  parle  et  repond,  et  ou  tout  se  traite  d'uno 
maniere  coupee,  prompte  et  vive.  ...  Co  qu'on  appelle  esprit  chez  les 
Fran9ais  n'est  done  pas  de  Fesprit  mais  un  genre  pariiculier  de  1'esprit." — • 
Montesquieu,  Pensees  (Collection  Bordelaise),  ii.  302,  303. 


432  MONTESQUIEU 

laid  down  for  good  writing  are  practically  the  rules  for  good 
conversation.  " To  write  well,"  he  says  somewhere,  "you  must, 
skip  the  connecting  links,  enough  not  to  be  a  bore,  not  so  much 
as  to  be  unintelligible.'1  Hence  his  book  is  not  so  much  a 
dissertation  as  a  causerie.  It  rambles  pleasantly  -1  unmethodi- 
cally from  point  to  point,  welcomes  digressions,  and  often  goes  off 
at  a  tangent.  You  feel  yourself  in  the  presence  of  a  learned, 
witty,  and  urbane  talker,  who  does  not  wish  to  monopolize  the 
talk,  but  desires  to  elicit  that  free,  responsive  play  of  thought 
which  is  essential  to  good  conversation.  "I  don't  want  to  ex- 
haust the  subject,"  he  says,  "  for  who  can  say  everything  without 
being  a  deadly  bore."2  And  again,  "My  object  is  not  to  make 
you  read  ;  but  to  make  you  think."'3 

But  Montesquieu  is  also  a  man  of  the  closet,  a  man  who  spent 
long,  solitary  hours  in  his  library  at  La  Brede,4  filling  note-books 
with  copious  extracts,  and  condensing  his  thoughts  in  maxims 
and  reflections.  And  he  is  too  often  unable  to  resist  the  tempta- 
tion of  utilizing  the  contents  of  his  note-books  without  considering 
sufficiently  whether  they  are  relevant  to  or  assist  the  progress 
of  his  argument.  Indeed,  he  is  essentially  a  "fragmentary" 
thinker,  sententious  rather  than  continuous,  and  constitutionally 
reluctant,  perhaps  unable,  to  follow  out  persistently  long  trams 
of  thought.  But  these  peculiarities,  though  they  detract  from 
the  scientific  merit  of  his  book,  make  it  more  readable.  So  also 
do  the  little  asides  by  which  he  takes  his  readers  into  his  confi- 
dence, as  when  he  reminds  himself  that  if  he  dwells  too  much  on 
the  absence  of  any  need  for  virtue  in  a  monarchy,  he  may  be 
suspected  of  irony,  or  when  he  gives  expression  to  the  feelings 
of  lassitude  and  discouragement  which  overtake  him  towards  the 
end  of  his  task. 

Charm  of  style,  then,  counts  for  much  in  explaining  Montes- 
quieu's influence.  But  freshness  and  originality  count  for  much 
more.  The  orthodox  way  of  dealing  with  a  subject  of  political 
or  legal  science  was  to  start  from  general  propositions  laid  down 
authoritatively,  and  derived  either  from  Aristotle,  or,  more  often 
from  the  Roman  jurists,  and  to  deduce  from  them  certain  general 
conclusions.  Bodin's  great  treatise  on  the  Republic,  to  which 
Montesquieu  was  much  indbeted,  especially  for  his  theory  on  the 

1  Pensees,  ii.  14.       *  Esprit  des  lois,  Preface.       3  Ibid.,  book  xi.,  ch.  xx. 
4  A  description  of  the  contents  of  Montesquieu's  library  is  given  by  Brunet 
in  the  Collection  Migne  :  Troisieme  encyclopedic  theologique,  tome  43,  col.  344. 


MONTESQUIEU  433 

influence  of  climate,  was  framed  on  these  lines.  But  Montesquieu 
broke  away  from  the  old  lines,  his  starting-point  was  different. 
He  began  at  the  other  end.  He  started  from  the  particular 
institutions,  not  from  the  general  principles. 

I  have  dwelt  at  length,  perhaps  at  undue  length,  on  the  Persian 
Letters,  not  because,  as  has  been  inaccurately  said,  the  Spirit  of 
Laws  is  merely  a  continuation  of  the  earlier  work,  but  because 
the  Montesquieu  of  the  Spirit  of  Laws  is  still  the  Montesquieu  of 
the  Persian  Letters,  matured  and  ripened  by  twenty-seven  years 
of  study  and  experience,  but  in  essentials  still  the  same. 

He  began  his  literary  career  with  no  preoccupied  theory  or 
object,  but  as  a  detached  and  irresponsible  critic  and  observer 
of  man  in  his  infinite  diversity,  the  man  ondoyant  et  divers  of 
Montaigne.  And  he  retained  much  of  this  irresponsibility  and 
detachment  to  the  last.  It  is  true  that  after  much  search  he 
found,  or  believed  that  he  found,  certain  general  laws,  or  princi- 
ples, to  which  his  observations  could  be  attached,  under  which 
they  could  be  grouped.  But  one  often  feels,  in  reading  his 
opening  chapters,  that  they  are  a  sham  fa$ade,  giving  a  deceptive 
appearance  of  unity  to  a  complicated  and  irregular  set  of  buildings, 
richly  stored  with  miscellaneous  objects  of  interest.  His  doctrine 
of  the  relativity  of  laws,  which  is  the  foundation  of  enlightened 
conservatism,  and  has  been  used  in  defence  of  much  conservatism 
which  is  not  enlightened,  is  not  a  sufficient  foundation  for  a  con- 
structive system,  but  was  an  admirable  starting-point  for  a  man 
whose  primary  interest  lay  in  observing  and  comparing  different 
institutions  and  drawing  inferences  from  their  similarities  and 
diversities.  "Any  one  who  has  eyes  to  see,"  he  wrote  in  his 
subsequent  Defence  of  the  Spirit  of  Laws,  "  must  see  at  a  glance 
that  the  object  of  the  work  was  the  different  laws,  customs  and 
usages  of  the  peoples  of  the  world."  A  vast,  an  overwhelming 
subject,  which  the  author  failed  to  succeed  in  mastering  and 
controlling,  or  bringing  within  a  synthetic  grasp.  And  owing 
to  this  failure  the  Spirit  of  Laws  has  been  not  unfairly  described 
as  being,  not  a  great  book,  but  the  fragments  of  a  great  book.1 

1  Brunetiere,  Etudes  critiques,  4me  serie,  p.  258.  The  Marquis  d'Argenson, 
one  of  the  most  sagacious  and  prescient  observers  that  the  eighteenth  century 
produced,  was  shown  some  portions  of  the  Esprit  des  loie  before  the  book 
was  published,  and  his  forecast  of  its  character  proved  to  be  singularly  ac- 
curate: — "On  pretend  qu'il  (Montesquieu)  se  prepare  enfin  a  publier  son 
grand  ouvrage  sur  les  lois.  J'en  connais  deja  quelques  morceaux,  qui,  sou- 
tenus  par  la  reputation  de  1'auteur,  ne  peuvent  que  1'augmenter.  Mais  je 
crains  bien  que  1'ensemble  n'y  manque,  et  qu'il  n'y  ait  plus  de  chapitres 

29 


A34  MONTESQUIEU 

What  he  did  succeed  in  doing  was  in  indicating  the  path  by  which 
alone  effective  and  fruitful  progress  could  be  made  either  in 
jurisprudence  or  in  the  science  of  politics,  the  path  through 
diversity  to  uniformity,  through  facts  to  principles.  He  re- 
fashioned political  science  and  made  it  a  science  of  observation, 
and  by  so  doing  he  made  the  same  new  departure  in  political  and 
legal  science  as  Bacon  had  made  before  him  in  physical  science. 
He  closed  the  period  of  the  schoolmen.  He  was  not  content  to 
mumble  the  dry  bones  of  Roman  law.  He  turned  men  away 
from  abstract  and  barren  speculations  to  the  study  and  com- 
parison of  concrete  institutions.  And  it  is  in  this  sense  that  he 
may  be  claimed  as  one  of  the  founders  of  the  comparative  method 
as  applied  to  the  moral  and  political  sciences. 

He  began  at  the  other  end.  This  may  seem  a  little  thing. 
In  reality  it  was  a  very  great  t  hing .  The  human  mind  is  intensely 
conservative.  For  generations  men  go  on  working  at  the  old 
subjects  in  the  old  ways.  Then  comes  a  man  who,  by  some  new 
thought,  it  may  be  by  some  new  phrase,  which  becomes  a  catch- 
word, like  "evolution,"  takes  his  fellow-men  out  of  the  old  ruts, 
and  opens  up  to  them  new  regions  of  speculation  and  discovery. 
These  are  the  men  that  change  the  world.  And  Montesquieu 
was  one  of  these  men. 

He  has  been  claimed  on  high  authority,1  but  with  less  accuracy, 
as  the  founder  of  the  historical  method,  which  is  at  least  as  old 
as  Thucydides.  That  he  appreciated  the  importance  of  this 

agreables  a  lire,  plug  d'idees  ingenieuses  et  seduisantes,  que  de  veritables 
et  utiles  instructions  sur  la  fa9on  dont  on  devrait  rediger  les  lois  et  les  en- 
tendre. C'est  pourtant  la  le  livre  qu'il  nous  faudrait,  et  qui  nous  manque 
encore,  quoiqu'on  ait  deja  tant  £crit  sur  cette  mati&re. 

"  Nous  avons  de  bons  instituts  de  droit  civil  remain,  nous  en  avons  de 
passables  de  droit  fran9ais  ;  mais  nous  n'en  avons  absolument  point  de  droit 
public  general  et  universel.  Nous  n'avons  point  Yesprit  des  lois,  et  je  doute 
fort  que  mon  ami,  le  president  de  Montesquieu,  nous  en  donne  un  qui  puisse 
servir  de  guide  et  de  boussole  a  tous  les  legislateurs  du  monde.  Je  lui  connais 
tout  1'esprit  possible.  II  a  acquis  les  connaissances  les  plus  pastes,  tant 
dans  ses  voyages  que  dans  ses  retraites  a  la  campagne.  Mais  je  predis  encore 
une  fois  qu'il  ne  nous  donnera  pas  le  livre  qui  nous  manque,  quoique  Ton 
doive  trouver  dans  celui  qu'il  prepare  beaucoup  d'idees  profondes,  de  pens^es 
neuves,  d'images  frappantes,  de  saillies  d'esprit  et  de  genie,  et  une  multitude 
de  faits  curieux,  dont  1' application  suppose  encore  plus  de  gout  que  d' etude." 
— Memoires  du  Marquis  d'Argenson  (ed.  1825),  pp.  430,  431.  It  is  to  be  hoped 
that  this  passage  has  not,  like  others  in  the  edition  of  1825,  been  recast  by 
the  editor.  As  to  the  defects  of  this  edition,  see  Sainte-Beuve,  Causeries  du 
Lundi,  vol.  xii.  And  as  to  the  later  editions  of  d'Argenson,  see  Aubertin, 
V esprit  public  au  xviii*  sic.de,  p.  194. 

1  By  Sir  Henry  Maine,  Sir  Leslie  Stephen,  and  others. 


MONTESQUIEU  435 

method  is  true.  "  I  could  wish,"  he  says  in  one  of  his  fragments,1 
"  that  there  were  better  works  on  the  laws  of  each  country.  To 
know  modern  times,  one  must  know  antiquity :  each  law  must 
be  followed  in  the  spirit  of  all  the  ages."  But  for  its  application 
he  had  neither  the  requisite  knowledge  nor  the  requisite  capacity. 
Like  his  predecessors,  he  speculated  about  the  state  of  nature. 
But  for  any  knowledge  of  savage  or  uncivilized  man,  without 
which  all  speculations  and  theories  as  to  the  origin  of  society  are 
idle,  he  was  dependent  on  books  of  travel  and  accounts  of  mis- 
sionaries, with  no  means  of  checking  their  accuracy.  Of  the 
Iroquois  who  stood  for  the  typical  savage  in  the  early  eighteenth 
century,  he  had  doubtless  read  in  Lahortan  and  in  The  Relations 
of  the  Jesuits,  but  one  is  sometimes  tempted  to  think  that  he 
knows  no  more  about  him  than  might  have  been  picked  up  from 
some  stray  Bordeaux  mariner  who  had  navigated  Canadian 
waters.  In  his  account  of  early  Roman  history  he  follows  im- 
plicitly Livy  and  Florus,  and  of  Beaufort's  critical  investigation 
he  does  not  seem  to  have  heard.  Nor  is  there  any  evidence  of 
his  having  read  or  having  been  influenced  by  Vico,  that  solitary, 
mystical,  suggestive  Neapolitan  thinker,  who  seemed  to  live  out 
of  due  time,  and  whose  significance  was  not  appreciated  until  the 
following  century.  He  had  heard  of  the  Scienza  nuova  at  Venice, 
where  the  first  edition  was  much  in  demand,  and  made  a  note  of 
it  as  a  book  to  be  purchased  at  Naples,  but  there  is  nothing  to 
show  that  the  purchase  was  made.2  And  in  the  main  his  method 
of  procedure  is  unhistorical.  He  takes  more  account  of  the 
surroundings  of  laws  than  of  their  antecedents.  He  sees  laws  of 
different  periods  all  in  the  same  plane.  He  conceives  of  the 
State  as  a  condition  of  equilibrium  which  is  to  be  maintained. 
He  realizes  the  possibility  of  its  decay,  but  the  notions  of  progress 
and  development,  which  are  to  figure  so  largely  in  Turgot  and 
Condorcet,  are  foreign  to  his  mind. 

On  the  influence  exercised  by  Montesquieu's  great  book,  a 
substantial  volume  could  be  written.    It  was  far-reaching  and 

1  Pensees,  i.  195. 

2  See  Voyages  de  Montesquieu,  i.  65.     The  first  edition  of  the  Scienza  nuova 
was  published  in  1725.     Vico  tells  us  in  his  autobiography  that  the  Venetian 
ambassador  at  Naples  had  orders  to  buy  up  all  available  copies  from  the 
Neapolitan  publisher,  Felice  Mosca.     See  "  Vita  di  G.  B.  Vico  "  in  Opere  di 
Vico,  iv.,  p.  456  (ed.  by  G.  Ferrari,  Milan,  1876).     It  may  be  that  when  Mon- 
tesquieu reached  Naples  he  found  that  the  edition  had  been  sold  out.     The 
relations  of  Vico  to  Montesquieu  are  discussed  by  Professor  Flint  in  his  little 
book  on  Vico. 


436  MONTESQUIEU 

profound.  It  was  felt  in  the  course  of  political  thought ;  it  was 
felt  in  the  methods  of  political  science.  It  is  almost  true  that 
Montesquieu  invented  the  theory  of  the  British  constitution. 
At  all  events  he  was  the  chief  contributor  to  what  may  be  called 
the  authorized  version  of  the  British  constitution,  the  version 
to  which  currency  was  given  by  Blackstone1  and  Delolme,  which 
was  used  by  the  framers  of  constitutions  on  the  continent  of 
America  and  on  the  continent  of  Europe,  and  which  held  the  field 
until  it  was  displaced  by  the  Cabinet  theory  of  Walter  Bagehot. 
The  question  has  often  been  asked  how  far  Montesquieu  really 
knew  and  understood  the  institutions  which  he  described.2  On 
this  there  are  two  things  to  be  said.  In  the  first  place  the  British 
constitution  which  grew  up  out  of  the  Revolution  of  1688  was, 
when  Montesquieu  wrote,  still  in  the  making.  The  lines  on  which 
it  was  developed  were  not  yet  fixed  ;  whether  it  would  give  pre- 
ponderance to  the  King  or  to  Parliament  was  still  uncertain. 
In  the  next  place  Montesquieu  wrote  with  a  purpose.  England 
was  to  him  what  Germany  had  been  to  Tacitus.  It  was  a  neigh- 
bouring country  in  which  he  found,  or  thought  that  he  found, 
principles  of  liberty  which  had  vanished  from  his  own  country, 
and  for  the  restoration  of  which  he  hoped.  And  he  sketched 
those  principles  like  a  great  artist,  with  a  bold  and  free  sweep 
of  the  brush.  He  sought  to  render  the  spirit  and  characteristic 
features  :  for  minute  accuracies  of  topographical  detail  he  cared  as 
little  as  Turner  cared  in  painting  a  landscape. 

That  a  book  thus  conceived  should  be  read  with  delight  and 
admiration  by  Englishmen  was  not  surprising.3    Its  practical 

1  M.  Sorel  goes  too  far  in  saying  that  Blackstone  "  precede  do  "  Montes- 
quieu.    But  the  Spirit  of  Laws  is  expressly  quoted  in  ch.   ii.,   book  i.,  of 
the   Commentaries,    and   its  influence  is  clearly  apparent  throughout  that 
chapter. 

2  How  much  was  known  in  Prance  of  English  institutions  when  Montesquieu 
published  his  Esprit  des  lois  ?    Rapin's  History  of  England,  published  at  the 
Hague  in  1724,  was  probably  the  principal  available  authority.     "  No  book 
did  more  to  make  Europe  acquainted  with  Great    Britain  "  (Texte,  J.-J 
Rousseau,  etc.  (trans,  by  J.  W.  Matthews),  p.  21).    Much  knowledge  was 
disseminated  by  Huguenot  refugees  in  England,  and  much  could  have  been 
learnt  from  English  political  refugees,  like  Bolingbroke,  in  France.     But  the 
amount  of  information  available  in  a  literary  form  for  French  readers  was 
probably  not  great.     Voltaire's  Lettres  anglaises,  based  on  his  visit  of  1726-9, 
were  published  in  France  in  1734. 

3  Nugent's  English  translation  of  the  Spirit  of  Laws  appears  to  have  been 
published  in  1750.      See  Montesquieu's  letter  to  the  translator  of  Oct.  18, 
1750.     A  second  edition,  of  which  there  is  a  copy  in  the  British  Museum,  ap- 
peared in  1752,  and  several  other  editions  followed. 

"  My  delight,"  says  Gibbon  in  his  autobiography,  "  was  in  the  frequent 


MONTESQUIEU  437 

influence  was  first  exercised  in  English  lands,  not  indeed  in  Old 
England,  but  in  the  New  England  which  was  growing  up  beyond 
the  seas.  When  Washington  talked  about  the  Lycian  republic, 
we  may  be  sure  he  was  quoting  directly,  or  indirectly,  from  the 
Spirit  of  Laws.  From  the  same  book  Hamilton  and  Madison 
in  the  Federalist  drew  arguments  for  federation  and  for  the 
division  between  legislative,  executive,  and  judicial  powers.1 
And  later  on,  Thomas  Jefferson,  a  statesman  bred  in  a  widely 
different  school  of  thought,  had  a  curious  commentary  on  the 
Spirit  of  Laws  prepared  for  him  by  a  peer  of  France,  who  was 
a  member  of  the  French  Institute  and  of  the  Philosophical  Society 
of  Philadelphia.2 

In  England  the  spirit  of  Montesquieu  found  its  fullest  and  most 
glorious  expression  in  Burke,  both  when  in  his  earlier  years  he 
was  protesting  against  monarchical  infringements  of  the  British 
constitution,  and  when  in  his  later  years  he  was  denouncing  the 
tyranny  of  the  French  Convention. 

From  the  language  used  by  Sir  Henry  Maine  in  the  famous 
fourth  chapter  of  his  Ancient  Law  one  might  infer  that  in  his 
own  country  Montesquieu's  influence  was  at  once  eclipsed  by  that 
of  Rousseau.  But  such  an  inference  would  be  erroneous.  Mon- 
tesquieu, Voltaire,  and  Rousseau,  different  as  were  their  methods 

perusal  of  Montesquieu,  whose  energy  of  style  and  boldness  of  hypothesis  were 
powerful  to  awaken  and  stimulate  the  genius  of  the  age." 

There  is  a  curious  and  characteristic  rhapsody  on  Montesquieu  in  Bentham's 
Commonplace  Book  (Works  by  Bowring,  x.,  p.  143).  "  When  the  truths  in  a 
man's  book,  though  many  and  important,  are  fewer  than  the  errors  ;  when 
his  ideas,  though  the  means  of  producing  clear  ones  in  other  men,  are  found 
to  be  themselves  not  clear,  that  book  must  die :  Montesquieu  must  therefore 
die :  he  must  die,  as  his  great  countryman,  Descartes,  had  died  before  him  : 
he  must  wither  as  the  blade  withers,  when  the  corn  is  ripe  :  he  must  die,  but 
let  tears  of  gratitude  and  admiration  bedew  his  grave.  0  Montesquieu  !  the 
British  constitution,  whose  death  thou  prophesiedst,  will  live  longer  than 
thy  work,  yet  not  longer  than  thy  fame.  Not  even  the  incense  of  [the  illustrious 
Catherine]  can  preserve  thee. 

"  Locke — dry,  cold,  languid,  wearisome,  will  live  for  ever.  Montesquieu — 
rapid,  brilliant,  glorious,  enchanting — will  not  outlive  his  century. 

"  I  know — I  feel — I  pity — and  blush  at  the  enjoyment  of  a  liberty  which 
the  birthplace  of  that  great  writer  (great  with  all  his  faults)  [forbade  him  to 
enjoy], 

"  I  could  make  an  immense  book  upon  the  defects  of  Montesquieu — I  could 
make  not  a  small  one  upon  his  excellences.  It  might  be  worth  while  to  make 
both,  if  Montesquieu  could  live." 

1  See  Letters  9  (A.  Hamilton)  and  47  (Madison),  and  Bryce's  American 
Commonwealth,  part  i.,  ch.  xxv. 

2  Destutt  de  Tracy.     His  curious  commentary  is  really  an  attempt  to  re- 
write the  Spirit  of  Laws  from  the  commentator's  point  of  view. 


438  MONTESQUIEU 

and  their  aims,  were  all  factors  of  the  first  importance  in  the 
French  Revolution.  "Every  enlightened  Frenchman,"  says 
M.  Sorel,  "  had  in  his  library  at  the  end  of  the  eighteenth  century 
a  Montesquieu,  a  Voltaire,  a  Rousseau,  and  a  Buffon."1  The 
Spirit  of  Laws  was  a  storehouse  of  argument  for  the  publicists 
of  1789,  and  French  writers  of  repute  have  maintained  that  the 
influence  of  Montesquieu  counted  for  as  much  in  the  Declaration 
of  Rights  as  the  influence  of  Rousseau.  It  must  be  remembered 
that,  though  Montesquieu  wrote  as  a  monarchist,  his  heart  was 
in  the  little  republics  of  the  Grseco-Roman  world,  and  he  is 
responsible  for  much  of  the  pseudo-classicism  which  characterized 
political  thought  at  the  end  of  the  eighteenth  century.  It  is 
true  that  during  the  interval  between  1789  and  1793  the  influence 
of  Montesquieu  waned  as  that  of  Rousseau  waxed.  He  was 
identified  with  the  aristocrats  and  Anglophiles2 :  the  Girondists 
were  charged  with  studying  him  overmuch  ;  and  if  Robespierre 
quoted  him  for  his  purpose,  he  quoted  him  with  a  significant 
difference.  "In  times  of  Revolution,"  said  Robespierre,  "the 
principle  of  popular  government  is  both  virtue  and  terror  :  virtue 
without  which  terror  is  fatal ;  terror  without  which  virtue  is  power- 
less."8 Napoleon  had  studied  the  Spirit  of  Laws,  but  a  system 
which  aimed  at  the  preservation  of  political  liberty  by  the  separa- 
tion of  political  powers  did  not  commend  itself  to  his  mind.4 
Dormant  under  the  Consulate  and  the  Empire,  the  influence  of 
Montesquieu  arose  to  renewed  and  more  powerful  life  at  the 
Restoration,  and  was,  during  the  first  half  of  the  nineteenth 
century,  the  inspiration  of  all  constitutional  monarchists,  both 
in  France  and  in  other  European  countries. 

The  influence  of  Montesquieu  on  methods  of  study  was  as 
important,  though  not  as  immediate,5  as  his  influence  on  the 

1  Sorel,  Montesquieu,  p.  149. 

2  Under  the  Terror  Montesquieu's  son  was  thrown  into  prison  as  a  suspect 
and  his  property  was  sequestrated.     He  died  in  1795.     Montesquieu's  grand- 
son, who  had  served  under  Washington  in  the  United  States,  became  an 
emigre,  married  an  Irish  lady  and  settled  down  in  Kent,  where  he  died  without 
issue  in  1825.     He  left  his  MSS.  and  his  French  property  to  a  cousin,  descended 
from  a  daughter  of  the  great  Montesquieu. 

3  Sorel,  p.  155. 

4  See  the  interesting  letter  of  Sept.  19,  1797,  written  by  Napoleon  from 
Italy  to  Talleyrand,  with  a  request  that  it  might  be  shown  to  Sieyes.     Napo- 
leon, Correspondence,  vol.  iii.,  p.  313  (No.  2223). 

5  "  Un  seul  ecrivain,  Montesquieu,  le  mieux  instruit,  le  plus  sagace  et  le 
plus  equilibre  de  tous  les  esprits  du  siecle,  demelait  ces  verites,  parco  qu'il 
etait  a  la  fois  erudit,  observateur,  historien  et  jurisconsulte.     Mais  il  parlait 
comme  un  oracle,  par  sentences  et  en  enigmes ;  il  courait,  comme  sur  des 


MONTESQUIEU  439 

course  of  political  thought.  Of  the  historical  and  comparative 
method,  in  their  application  to  Law  and  Politics,  he  was,  as  has 
been  justly  remarked,1  rather  a  precursor  than  a  founder.  His 
appreciation  of  the  historical  method  was  imperfect,  and  his 
application  of  it  defective.  It  was  not  until  the  expiration  of  a 
century  after  his  death  that  the  importance  and  significance  of 
either  the  historical  or  the  comparative  method  was  fully  realized. 
But  in  the  meantime  his  central  doctrine,  that  the  true  spirit  and 
meaning  of  a  law  or  constitution  cannot  be  grasped  without 
careful  study  of  all  its  surroundings  and  all  its  antecedents,  had 
sunk  deeply  into  the  minds  of  students,  and  prepared  the  way 
for  and  gave  an  enormous  stimulus  to  those  methods  of  study 
which  are  now  recognized  as  indispensable  to  any  scientific  treat- 
ment either  of  Law  or  of  Politics. 

Within  the  last  half-century  societies  for  the  study  of  Com- 
parative Law  and  Comparative  Legislation  have  come  into 
existence  in  France,  England,  Germany  and  elsewhere,2  and  have 
done,  and  are  doing,  work  of  the  greatest  interest  and  utility. 
Some  of  them  approach  their  subject  mainly  from  the  point  of 
view  of  the  lawyer  or  the  jurist,  and  devote  their  attention  pri- 
marily to  those  branches  and  aspects  of  the  subject  which  fall 
within  the  domain  either  of  private  or  of  criminal  law.  Others 
look  primarily  at  the  constitutional  and  administrative  experi- 
ments which  are  being  tried  by  the  legislatures  of  different  coun- 
tries, and  thus  deal  with  their  subject  as  a  branch  of  political 
science.  Their  areas  of  study  overlap  each  other,  and  the  point 
of  view  is  not  quite  the  same.  Within  each  area  they  have 
collected  and  compared  a  vast  quantity  of  facts  which  form  an 
indispensable  preliminary  to,  and  constitute  the  raw  material  for, 
a  scientific  treatment  of  the  studies  with  which  they  are  con- 
cerned. The  task  that  remains  for  the  scientific  jurist  and  for 
the  political  philosopher  is  to  elicit,  in  the  spirit  of  Montesquieu, 

charbons  ardents,  toutes  les  fois  qu'il  touchait  aux  choses  de  son  pays  et  de 
son  temps.  C'est  pourquoi  il  demeurait  respecte,  mais  isole,  et  sa  celebrite 
n'etait  point  influence." — Taine,  Ancien  Regime,  p.  278.  This  statement  of 
Taine  must  be  read  as  applying  to  Montesquieu's  influence  on  method,  not  to 
his  influence  on  political  thought. 

1  By  Sir  F.  Pollock  in  his  farewell  lecture  on  the  "  History  of  Comparative 
Jurisprudence  "  (Journal  of  the  Society  of  Comparative  Legislation,  August, 
1903). 

2  Societe  de  Legislation  Comparee,  founded  1869  ;  Gesellschaft  fur  ver- 
gleichende  Rechts-  und  Staatswissenschaft,  founded   1893  ;   Internationale 
Vereinigung    fur    vergleichende    Rechtswissenschaft    und    Volkswirthschaft, 
founded  1894  ;  (English)  Society  of  Comparative  Legislation,  founded  1894. 


440  MONTESQUIEU 

but  with  fuller  knowledge,  and  with  better  critical  methods,  the 
inner  meaning  of  the  laws  and  institutions  of  different  countries, 
and  to  trace  the  general  lines  on  which  they  have  developed  in 
the  past,  and  may  be  expected  to  develop  in  the  future. 

One  might  amuse  oneself  by  speculating  on  the  differences 
which  Montesquieu  would  have  observed,  and  on  the  general 
reflections  which  he  might  have  made,  if  he  had  been  called 
upon  to  pass  in  review  the  governments  and  legislation  of  the 
present  day.  He  would  have  found  in  almost  every  part  of  the 
civilized  world  governments  with  representative  legislatures  and 
parliamentary  institutions,  all  more  or  less  on  the  English  lines 
which  he  had  admired  and  described,  and  all  recognizing,  though 
in  greater  or  less  degree,  and  in  different  forms,  his  principle  cf 
the  separation  between  the  three  functions  of  government,  legis- 
lative, executive,  and  judicial.  And  he  would  have  found  all 
these  legislatures  actively  and  continuously  engaged  in  the  work 
of  legislation,  and  producing  new  laws  with  prodigious  fertility 
and  in  bewildering  variety. 

Besides  the  legislatures  of  European  and  South  American 
States,  there  are  within  the  British  Empire  between  sixty  and 
seventy  different  legislatures,  and  in  the  United  States  forty- 
eight  local  legislatures,  in  addition  to  the  central  legislature 
consisting  of  Senate  and  Congress.  And  in  the  year  1901  these 
forty-eight  United  States  legislatures  enacted  no  less  than  14,190 
new  laws.  When  Montesquieu  wrote,  the  British  Parliament  was 
practically  the  only  representative  legislature  in  the  world,  and 
the  only  legislature  which  was  continuously  at  work.  And  its 
output  of  legislation  was  comparatively  modest.  Let  us  take  the 
record  of  the  session  of  1730,  when  Montesquieu  was  attending 
debates  at  St.  Stephen's.  There  was  no  reference  to  legislation 
in  the  King's  Speech.  The  Acts  of  the  session  were  forty-eight, 
and  of  these  twenty  were  local  and  four  fiscal.  There  was  an  Act, 
which  gave  rise  to  some  debate,  for  placing  restrictions  on  loans 
by  British  subjects  to  foreign  States,  a  measure  which,  as  Sir 
Robert  Walpole  explained,  arose  out  of  a  projected  loan  for  the 
assistance  of  the  Emperor  Charles  VI.,  whose  diplomatic  relations 
with  George  the  Second  were  strained.  The  care  of  Parliament 
for  trade  and  industry  was  minutely  paternal.  There  was  an 
Act  for  regulating  the  methods  of  burning  bricks,  and  another 
for  better  regulating  the  coal  trade.  There  was  an  Act  for  grant- 
ing liberty  to  carry  rice  from  His  Majesty's  Province  of  Carolina 


MONTESQUIEU  441 

in  America  directly  to  any  part  of  Europe  southward  of  Cape 
Finisterre  in  ships  built  in  and  belonging  to  Great  Britain  and 
navigated  according  to  law,  and  another  Act  for  the  importing  of 
salt  from  Europe  into  the  colony  of  New  York  with  the  view  to 
the  better  curing  of  fish,  "whereby  the  trade  of  Great  Britain 
and  the  inhabitants  of  the  said  colony  would  reap  considerable 
benefit  which  would  enable  the  said  inhabitants  to  purchase 
more  of  the  British  manufacturers  for  their  use  than  at  present 
they  are  able."  And  there  was  one  of  the  numerous  "  omnibus  " 
Acts  then  allowed  by  Parliamentary  procedure,  dealing,  within 
its  four  corners,  with  the  price  of  bread,  the  relief  of  bankrupts, 
deeds  and  wills  executed  by  Papists,  and  the  settlement  of  paupers. 
And  this  is  nearly  all.  The  eighteenth-century  statutes,  except 
so  far  as  they  are  purely  local,  consist  chiefly  of  detailed  regula- 
tions made  by  landowners  sitting  at  Westminster  for  their  own 
guidance  as  justices  of  the  peace  in  the  country.  And  the 
executive  functions  of  the  central  government  were  at  that  time 
very  limited.  "  The  Prince,"  says  Montesquieu,  "  in  his  exercise 
of  executive  functions,  makes  peace  or  war,  sends  or  receives 
embassies,  keeps  the  peace,  prevents  invasions."  It  was  in  fact 
to  the  maintenance  of  the  internal  peace  that,  apart  from  foreign 
relations  and  war,  the  duties  of  the  central  government  were 
mainly  confined.  There  was  no  Local  Government  Board,  no 
Board  of  Education,  no  Board  of  Agriculture,  and  the  duties  of 
the  Board  of  Trade  were  almost  nominal.  Nor,  on  the  other 
hand,  were  there  county  councils,  district  councils,  or  parish 
councils.  The  municipalities  were  close,  corrupt,  irresponsible 
corporations,  existing  for  the  benefit  of  their  members  and  not 
of  the  local  public.  There  were  no  railways,  and  no  limited 
companies.  Gas  and  electricity  had  not  been  utilized.  Parlia- 
ment did  not  concern  itself  with  educational  or  sanitary  questions, 
and  factory  legislation  was  a  thing  of  the  distant  future.1  Thus 
almost  all  the  materials  for  modern  Parliamentary  legislation 
were  absent. 

This,  then,  would  have  been  one  of  the  differences  that  Montes- 
quieu would  have  noted — the  prodigious  increase  in  the  extent 
and  variety  of  legislation.  And  on  investigating  the  causes  of 
the  difference  he  would  have  found  the  main  cause  to  be  this — 
that  the  world  has,  since  his  time  been  absolutely  transformed 

1  I  have  ventured  to  repeat  some  expressions  used  in  chapter  x.  of  my 
book  on  Legislative  Methods  and  Forms; 


442  MONTESQUIEU 

by  the  operation  of  physical  science.  What  has  physical  science 
done  for  the  world  ?  It  has  done  three  things.  It  has  increased 
the  ease  and  speed  of  production.  It  has  increased  the  ease  and 
speed  of  locomotion.  It  has  increased  the  ease  and  speed  of 
communicating  information  and  opinion.1  And  by  so  doing  it 
has  made  for  democracy,  it  has  made  for  plutocracy,  it  has  made 
for  great  States.  It  has  made  for  democracy,  both  by  enabling 
the  popular  will  to  act  more  speedily  and  effective!}7,  and  by 
the  creation  of  wealth  which  levels  distinctions  based  on  social 
position.  But  it  has  also  increased,  to  an  extent  unimaginable 
even  in  the  days  of  Law's  system  and  the  South  Sea  Bubble,  that 
power  of  great  finance  which  manufactures  through  its  press 
what  is  called  public  opinion,  pulls  the  strings  of  political  puppets, 
and  is  the  most  subtle,  ubiquitous  and  potent  of  modern  political 
forces. 

Physical  science  has  made  great  democratic  States  possible,  and 
great  States,  or  agglomerations  of  States,  necessary.  For  Mon- 
tesquieu, as  for  Aristotle,  a  democracy  meant  a  body  of  citizens 
who  could  meet  together  in  one  place  for  political  discussion. 
The  body  must  not  be  too  large,  for  as  Aristotle  says,  if  it  were, 
what  herald  could  address  them,  unless  he  were  a  Stentor  ?  But 
the  modern  statesman,  to  say  nothing  of  the  modern  reporter 
who  heralds  a  cricket  match,  can,  without  being  a  Stentor, 
speak  to  the  Antipodes.  And  science  has  made  great  States 
necessary  by  increasing  both  the  effectiveness  and  the  cost  of 
munitions  of  war.  States  agglomerate  both  for  economy  and  for 
self-defence,  and  small  isolated  States  exist  only  by  sufferance. 

Since  Montesquieu's  time  both  the  area  and  the  population  of 
the  civilized  world  have  enormously  increased.  And  yet  for 
political  purposes  it  has  become  a  much  smaller  world,  smaller, 
more  compact,  more  accessible.  And  this  has  tended  to  greater 
uniformity  of  legislation  and  institutions. 

The  greater  uniformity  has  been  brought  about  mainly  in 
three  ways.  First,  by  direct  imitation.  Man,  as  M.  Tarde  has 
reminded  us,  is  an  imitative  animal.  He  imitates  his  fore- 
fathers :  that  is  custom.  He  imitates  his  neighbours  :  that  is 
fashion.  He  imitates  himself  :  that  is  habit.  And  direct  imita- 
tion plays  a  large  part  in  institutions  and  legislation.  English 
Parliamentary  procedure  has  made  the  tour  of  the  world.  Guizot 

1  See  Paguet's  interesting  essay,  Que  sera  le  xxme  siecle,  in  Questions  politiqves 
(Paris,  1899). 


MONTESQUIEU  443 

reminded  a  Committee  of  the  House  of  Commons  in  1848  that 
Mirabeau  had  based  the  rules  of  the  National  Assembly  on  a 
sketch  of  the  proceedings  of  the  House  of  Commons  furnished 
to  him  by  Etienne  Dumont,1  and  that  when  the  Charter  was 
granted  by  Louis  XVIII.  in  1814,  the  same  rules  were  adopted 
with  some  changes.  Thomas  Jefferson,  when  President  of  the 
United  States,  drew  up  for  the  use  of  Congress  a  manual  con- 
sisting largely  of  extracts  from  English  Parliamentary  precedents, 
and  Jefferson's  Manual  is  still  an  authoritative  work.  Every 
colonial  legislature  conforms  to  the  rules,  forms,  usages,  and 
practices  of  the  Commons  House  of  Parliament  of  Great  Britain 
and  Ireland,  except  so  far  as  they  have  been  locally  modified. 
A  very  large  proportion  of  Colonial  enactments  are  directly 
copied  from  the  English  Statute-book,  with  minor  local  variations. 
And  the  practice  of  looking  for  and  copying  precedents  supplied 
by  other  legislatures  is  steadily  on  the  increase,  not  only  within 
the  British  Empire,  but  in  all  parts  of  the  civilized  world.  This, 
then,  is  one  cause  of  uniformity. 

In  the  next  place  the  facility  of  intercourse,  and  especially 
the  closeness  of  commercial  relations  between  different  countries, 
tends  to  a  general  assimilation  of  commercial  usages.  The 
diversity  of  laws  which  was  found  intolerable  in  France  at  the 
end  of  the  eighteenth  century,  and  in  Germany  at  the  end  of  the 
nineteenth  century,  has  long  made  itself  felt  as  a  serious  and  as  a 
remediable  nuisance  in  matters  of  commerce  throughout  the 
world,  and  in  many  parts  of  the  domain  of  commercial  law  we 
have  either  attained  to  or  are  within  measurable  distance  of  that 
common  code  of  laws  which  is  the  dream  of  comparative  jurists. 

And  lastly,  in  a  world  compacted  and  refashioned  by  science, 
those  causes  of  difference  to  which  Montesquieu  attached  import- 
ance, and  in  some  cases  exaggerated  importance — causes  such  as 
climate,  race,  geographical  conditions,  difference  in  forms  and 
degrees  of  civilization — tend  to  become  of  less  importance.  Not 
that  they  have  disappeared,  or  can  be  left  out  of  account.  Mon- 
tesquieu took  much  interest  in  questions  of  political  economy, 

1  Evidence  before  Select  Committee  on  Public  Business,  Q.  309.  Dumont's 
own  account  (Souvenirs  sur  Mirabeau,  p.  164)  does  not  quite  bear  out  Guizot's 
statement.  According  to  Dumont,  Romilly  had  made  a  sketch  of  English 
Parliamentary  procedure,  which  Dumont  translated  for  Mirabeau.  Mirabeau 
laid  this  translation  on  the  table  by  way  of  a  proposal,  but  the  Assembly 
declined  to  consider  it :  "  Nous  ne  sommes  pas  Anglais,  et  nous  n'avons  pas 
besoin  des  Anglais."  Romilly's  own  account  of  his  sketch,  and  of  its  fate, 
s  to  the  same  effect.  Memoirs,  i.  101. 


444  MONTESQUIEU 

and  he  would  certainly  have  pointed  out  that  fiscal  arrangements 
which  are  well  adapted  to  a  State  whose  territories  are  con- 
tinuous, are  presumably  less  well  adapted  to  a  State  whose 
component  parts  are  sundered  by  oceans.  The  question  of 
race  is  always  with  us,  and  the  jealousies  and  antipathies  of 
white,  brown,  yellow  and  black  races  present  an  insoluble  problem 
to  the  legislator  in  almost  every  part  of  the  globe.  Nor  are  the 
legislative  problems  which,  apart  from  race,  arise  from  the 
contrast  between  different  degrees  and  stages  of  civilization,  less 
numerous,  less  difficult,  or  less  interesting.  Wilhin  the  British 
Empire  we  have  to  legislate  for  the  hill-tribes  of  India,  for  the 
fetish-worshippers  of  Western  Africa,  and  for  the  savages  of  New 
Guinea  ;  and  a  museum  full  of  instructions  and  suggestions  to  the 
statesman  and  the  jurist  is  to  be  found  in  the  Regulations  made 
by  the  Government  of  British  India  for  its  less  advanced  regions 
and  in  the  Ordinances  which  have  been  passed  for  the  West 
African  Protectorates.  Thus  the  causes  of  difference  remain  and 
are  of  importance.  But  on  the  whole  the  importance  of  the 
causes  which  make  for  difference  tends  to  decrease,  and  the 
importance  of  the  causes  which  make  for  uniformity  tends  to 
increase.  Take  up  one  of  the  annual  summaries  of  the  world's 
legislation  which  are  published  by  the  French  and  English 
Societies  of  Comparative  Legislation.  Your  first  impression  will 
be  one  of  bewilderment  at  the  multiplicity  and  variety  of  the 
subjects  dealt  with.  But  if  you  read  on,  and  still  more  if  you 
extend  your  studies  over  a  series  of  years,  you  will  be  struck 
with  the  large  number  of  important  subjects  which  recur  with 
unfailing  regularity  in  the  legislation  of  each  State  in  each  year. 
Education,  factory  laws,  mining  laws,  liquor  traffic — everywhere 
you  will  find  the  same  problems  being  dealt  with  on  lines  of  in- 
creasing similarity,  though  with  a  due  recognition  of  the  differ- 
ences arising  from  diversitiesof  race,  character  and  local  conditions. 
In  the  year  1902  the  legislature  of  the  Straits  Settlements  was 
imposing  on  little  Malay  children  the  duty  of  compulsory  attend- 
ance at  school,  and  the  legislature  of  Sierra  Leone  was  regulating 
Mohammedan  education  on  Western  lines,  whatever  that  may 
mean.  It  is  perhaps  in  the  field  of  industrial  legislation  that  this 
similarity  of  treatment  and  of  trend  is  most  remarkable.  A 
quarter  of  a  century  ago  the  liability  of  employers  for  injuries  to 
their  workmen  was  in  every  civilized  country  regulated  by  rules 
derived  directly  or  indirectly  from  the  old  Roman  law.  Since 


MONTESQUIEU  445 

that  time  almost  every  legislature  has  been  altering  those  rules, 
and  has  been  altering  them  in  the  same  direction.  It  has  been 
recognized  everywhere  that  the  principle  of  basing  liability  on 
personal  negligence  is  inadequate  to  meet  the  modern  conditions 
of  corporate  employment,  of  employment  by  great  companies, 
and  the  universal  tendency  has  been  towards  placing  the  em- 
ployer in  the  position  of  an  insurer  against  accidents  to  his 
workmen,  and  of  thus  imposing  on  him  a  risk  which  he  again 
meets  by  modern  methods  of  insurance.  Similar  tendencies  may 
be  observed  in  other  departments  of  industrial  legislation,  such 
as  the  further  recognition  of  the  right  of  workmen  to  combine, 
the  regulation  of  the  conditions  of  employment,  especially  in  such 
organized  employments  as  mines  and  factories,  the  restrictions 
on  the  employment  of  women  and  children,  the  requirement  of 
precautions  against  risk  to  health  and  life,  the  formation  of 
Government  pension  funds  against  sickness  and  old  age,  and 
provisions  for  the  settlement  of  labour  disputes.  In  all  these 
branches  of  legislation  there  is  a  general  move  in  the  same 
direction,  though  with  differences  of  detail  and  at  different  rates 
of  progress.  In  short,  the  whole  civilized  world  appears  to  be 
advancing  towards  a  common  industrial  code,  as  it  is  advancing 
towards  a  common  commercial  code. 

Some  hundred  years  after  Montesquieu's  death  another 
brilliant  book  was  written  on  the  Spirit  of  Law.1  Savigny  had 
laid  down  the  dogma  that  the  law  of  each  nation  is  the  natural 
and  necessary  outgrowth  of  the  national  consciousness.  Ihering 
reminded  his  readers  that  Rome  had  thrice  conquered  the  world, 
first  by  arms,  secondly  by  religion,  and  lastly  by  law  ;  and  that 
the  general  reception  of  Roman  law,  of  which  Savigny  was  the 
historian,  was  inconsistent  with  the  dogma  of  the  exclusively 
national  character  of  law,  of  which  Savigny  was  the  prophet. 
As  nations  live  commercially  by  the  free  interchange  of  commo- 
dities, so  they  live  intellectually  by  the  free  interchange  of  ideas, 
and  they  are  not  the  worse,  but  the  better,  for  borrowing  from 
each  other  such  laws  and  institutions  as  are  suitable  to  their 
needs.  It  is  true,  as  Savigny  taught,  and  as  Montesquieu  had 
indicated  before  him;  that  the  laws  of  a  nation  can  only  be  under- 
stood if  they  are  studied  as  part  of  the  national  life  and  character. 
But  it  is  also  true  that  the  object  of  the  jurist  is  to  discover  the 

1  The  first  edition  of  Ihering's  Geist  des  romischen  Rechts  began  to  appear 
in  1852. 


446  MONTESQUIEU 

general  principles  which  underlie  different  systems  of  law.  Only 
he  has  now  realized  that  those  principles  cannot  be  discovered 
except  by  a  profound  and  scientific  study  of  the  legal  institutions 
and  the  legal  history  of  different  nations,  and  by  comparing  with 
each  other  the  laws  of  different  countries  and  the  different  stages 
of  legal  development.  It  was  in  order  to  discover  the  true 
meaning  of  the  legal  rules  derived  from  ancient  Rome,  as  the 
main  factor  of  European  law,  that  Ihering  undertook  his  inquiry 
into  the  Spirit  of  Roman  Law.  He  who  would  measure  the 
advance  in  the  breadth  and  depth  of  comparative  jurisprudence 
between  the  middle  of  the  eighteenth  and  the  middle  of  the 
nineteenth  century  could  not  do  better  than  compare  Montes- 
quieu's Spirit  of  Laws  with  Ihering's  Spirit  of  Roman  Law. 

Montesquieu  left  two  great  legacies  to  the  world.  He  formu- 
lated the  theory  of  the  British  constitution  which  held  the  field 
for  a  century,  and  was  the  foundation  of  every  constitutional 
government  established  during  that  period ;  and  he  gave  a  new 
direction  to  the  study  of  legal  and  political  science. 

Montesquieu  was  one  of  the  greatest  of  the  apostles  of  liberty 
in  modern  times.  Socially  and  politically,  he  belongs  to  the  old 
regime,  to  the  regime  which  in  France  passed  away  in  1789, 
which  in  England,  where  changes  are  less  catastrophic,  began 
to  pass  away  in  1832.  Scientifically  also  he  belongs  to  a  bygone 
age.  His  new  ideas,  his  new  methods,  once  so  fresh,  so  attractive, 
so  stimulating,  have  passed  into  and  been  merged  in  the  common 
heritage  of  Western  thought.  But  in  his  generation  he  suc- 
ceeded, with  a  success  beyond  his  most  sanguine  hopes,  in  doing 
what  he  tried  to  do — he  made  men  think. 


ROBERT    JOSEPH     POTHIER 


ROBERT  JOSEPH  POTHIER  AND  FRENCH  LAW 

ROBERT  JOSEPH  POTHIER  was  born  in  the  town  of  Orleans  on 
January  9,  1699,  and  he  died  there  on  March  2,  1772.  He 
came  of  an  Orleans  family  of  good  position  that  had  for  genera- 
tions exercised  magisterial  functions  in  the  town.  His  father  was 
Robert  Pothier,  his  mother  Marie  Madeleine  Jacquet.  Robert 
Pothier  held  the  magisterial  office  of  Conseiller  au  Presidial 
d'Orleans,  an  office  that  his  son  was  destined  to  hold,  and  which 
his  father,  Florent  Pothier,  had  held.  He  was  descended  from 
the  Florent  Pothier  who  was  Mayor  of  Orleans  in  1603.  Robert 
Pothier  died  when  his  son  was  only  five  years  old,  but  the  in- 
fluence of  the  future  jurist's  mother  determined  that  his  career 
should  follow  the  hereditary  legal  bias.  The  child  was  educated 
in  the  Jesuit  College  at  Orleans,  and  there,  despite  his  feeble 
health  and  poor  instruction,  he  made  rapid  progress  in  Latin 
literature,  the  humanities,  and  ancient  philosophy.  His  fine 
memory,  his  ease  of  acquisition,  and  his  application,  made  him, 
indeed,  at  an  early  age  a  master  of  the  classical  studies  of  his 
age.  When  he  passed  from  the  Jesuit  College,  he  hesitated  for 
a  moment  as  to  his  course.  He  was  naturally  attracted  to  the 
study  of  mathematics  and  pure  thought ;  on  the  other  hand, 
the  legal  tradition  was  in  his  blood,  and  he  was  strongly  urged 
by  his  mother  and  by  his  father's  friend,  Prevost  de  la  Jannes 
Jaune,  to  follow  the  family  tradition.  In  fact,  as  we  shall  see, 
he  both  followed  that  tradition  and  indulged  to  the  full  his 
capacity  for  pure  thought.  He  joined  the  law  school  of  the 
University  of  Orleans,  at  that  date,  according  to  M.  le  Trosne,1 
in  a  deplorable  state.  "Les  Professeurs  qui  occupoient  alors 

1  M.  le  Trosne  was  the  Avocat  du  Boi  au  Presidial  d'Orleans  at  the  date 
of  Pothier's  death  in  1772.  His  Eloge  Historique  de  M.  Pothier  is  prefixed 
to  the  edition  of  Pothier's  works  issued  jointly  at  Paris  and  Orleans  in  1773-4 
in  four  volumes  which  was  followed  by  a  second  revised  edition  in  1781. 
Three  volumes  (Paris,  1777,  1777,  1778)  contain  the  posthumous  works,  and 
with  the  other  four,  supply  the  authentic  text  ot  all  the  works. 

447 


448  POTHIEB 

les  Chaires  de  PUniversit6,  absolument  indifferens  aux  progres 
des  jeunes  gens,  se  contentoient  de  leur  dieter  quelques  lesons 
unintelligibles,  et  qu'ils  ne  daignoient  pas  mettre  a  leur  portee." 
The  King's  advocate  goes  on  to  describe  the  method  in  which 
law  was  taught  at  the  beginning  of  the  eighteenth  century  by 
the  professors  : 

"Ce  n'etoit  pas  proprement  la  science  du  Droit  qu'ils  enseign- 
oient :  ils  ne  presentoient  de  cette  science  si  belle  et  si  lumin- 
euse  par  elle-meme,  que  ces  epines  et  ces  contrari^tes  qui  lui 
sont  Itrangeres,  et  qui  n'y  ont  ete  introduces  que  par  1'inca- 
pacite  et  la  mauvaise  foi  des  Redacteurs  des  Pandectes.  Au 
lieu  d'expliquer  les  textes  d'une  maniere  propre  a  instruire,  ils 
ne  remplissoient  leur  Ie9ons  que  de  ces  questions  subtiles, 
inventees  et  multipliees  par  les  Controversistes. 

"  A  cette  maniere  d'enseigner,  on  auroit  pu  croire  qu'ils 
n'avoient  d'autre  objet  que  de  fermer  pour  toujours  le  sanc- 
tuaire  des  Loix  aux  Etudians,  par  le  degout  qu'ils  sgavoient 
leur  inspirer  ;  semblables  a  ces  anciens  Patriciens,  qui,  pour 
tenir  le  peuple  dans  leur  dependance,  lui  cachoient  avec  un  si 
grand  soin  les  formules  des  actions,  et  s'etoient  approprie  la 
connoissance  des  Loix,  qu'ils  avoient  soin  de  voiler  sous  une 
ecorce  mysterieuse.  Un  enseignement  si  peu  instructif  et  si 
defectueux,  ne  pouvoit  satisfaire  un  esprit  aussi  solide  et  aussi 
juste  que  celui  de  M.  Pothier  :  heureusement  il  ne  fut  pas- 
capable  de  le  rebuter ;  il  en  sentit  les  defauts,  et  supplea,  par 
son  travail,  aux  secours  qui  lui  manquoient.  Dans  toutes  les 
sciences,  ce  sont  les  premiers  pas  qui  sont  les  plus  difficiles  ;  il 
les  franchit  seul  par  1 'etude  serieuse  des  Institutes,  dans  la- 
quelle  il  s'aida  du  Commentaire  de  Vinnius,1  et  se  prepara  & 
aller  puiser  a  la  source  meme  du  Droit,  par  1'etude  la  plus 
profonde  et  la  plus  suivie  des  Pandectes." 

He  passed  brilliantly  through  the  various  stages  then  necessary 
in  the  University  to  qualify  for  the  Bar  and  the  Magistracy.  The 
difficulty  of  the  material  with  which  he  had  to  deal,  and  the 
poverty  of  the  teaching,  served  but  to  stimulate  his  great  powers 
while  his  close  study  of  the  Institutes  of  Justinian  in  the  pages 
of  Arnoldus  Vinnius  inspired  him  with  a  profound  interest  in  the 
law  and  history  of  a  people  with  whose  literature  he  was  already 
intimately  familiar.  Yet  when  all  the  examinations  were  passed, 
he  was  faced,  according  to  M.  le  Trosne,2  once  more  by  the 
parting  of  the  ways.  His  prof oundly  religious  mind  and  his  un- 

1  Commentary  on  the  Institutes  in  Four  books.     A  further  edition  of  this 
work  was  issued  in  1755  in  two  volumes,  by  Gottlieb  Heineccius. 

2  The  fact  is  not  mentioned  in  the  admirable  article  on  Pothier  in  La 
Roussc's  Grand  Dictionnaire  du  XIX'  Siecle.   There  the  only  crisis  mentioned 
occurred  before  he  entered  the  University. 


POTHIER  449 

worldly  nature  were  greatly  attracted  by  the  religious  life;  and 
at  this  time  (about  1720)  he  almost  decided  to  enter  the  Order 
of  Regular  Canons,  and  was  only  deterred  from  this  step  by  his 
close  attachment  to  his  mother.  He  then  at  last  determined  to 
adopt  the  law  as  his  profession,  and  his  immense  knowledge 
justified  the  local  Ordinance  by  which,  at  the  age  of  twenty-one, 
he  was  nominated  to  the  same  magisterial  position  that  had 
been  occupied  by  his  father  and  grandfather,  Conseiller  au 
Presidial  d'Orleans.  His  position  determined  finally  not  only 
his  avocation,  but  his  course  of  work.  To  the  study  of  the 
theory  and  history  of  law  he  turned  all  his  powers,  while  at  the 
same  time,  in  the  chambers  of  Me  Perche,  the  most  learned  and 
brilliant  advocate  in  Orleans,  he  obtained  a  close  knowledge  of 
actual  practice.  It  is  important  to  dwell  on  these  early  stages 
of  Pothier's  career.  The  fact  that  with  him  (as  with  Savigny  at 
the  end  of  the  century)  ceaseless  toil  at  the  history  and  theory  of 
law  was  coupled  with  assiduous  attention  to  law  in  actual  prac- 
tice (he  sat  on  the  bench  at  Orleans  for  over  fifty  years)  gave 
a  value  to  Pothier's  work  on  French  law  and  on  the  principles 
of  law  that  will  never  be  lost. 

In  the  ten  or  twelve  years  following  his  appointment,  he  com- 
bined with  the  study  and  the  practice  of  law  a  close  considera- 
tion of  the  basis  of  theology.  His  favourite  author  was  St. 
Augustine,  but  he  joined  the  Port  Royalist  school  of  thought, 
and  found  in  Pierre  Nicole  (1625-1695)  that  combination  of  vast 
learning  in  philosophy  and  theology  with  profound  reverence  that 
exactly  fitted  his  own  mind.  Nicole  closely  approached  the 
Jansenist  position,  and  in  this  particular  Pothier  went  past  his 
master,  and  became  a  Jansenist,  a  fact  never  forgiven  by  the 
Roman  Catholic  Communion  in  Orleans,  who  even  refused  him 
burial  room  in  the  Cathedral  of  the  city  that  he  had  adorned.1 
The  study  of  theology  Pothier  maintained  all  his  life,  and  the 
fact  has  to  be  kept  in  mind  in  considering  his  whole  position, 
since  his  attitude  towards  theology  was  really  his  attitude  to- 
wards law.  The  right  to  think  and  the  duty  to  think  clearly  on 
all  subjects  was  the  claim  that  made  him  one  with  the  great 
Post  Royalists,  and  a  symptom  of  the  change  that  was  passing 
over  France. 

1  The  remains  were  translated  to  the  cathedral  in  1823  with  much  pomp, 
but  in  1843  they  were  removed  to  an  obscure  part  of  the  building,  where 
the  school -children  sat.  But  Pothier,  the  teacher,  would  not  have  com- 
plained. 

30 


450  POTHIER 

It  will  be  convenient  here  to  sketch  as  briefly  as  may  be  the 
juridical  and  judicial  system  into  which  Robert  Joseph  Pothier 
was  born,  for  it  was  from  his  practical  experience  of  this  system 
that  he  drew  that  knowledge  of  affairs  which  gives  such  a  profound 
value  to  his  work.  The  long  story  of  the  reduction  to  writing 
and  revision  of  French  customary  law,  a  work  that  began  with  the 
ordinance  of  Charles  VII.  in  1453,  and  had  been  for  the  most  part 
achieved  after  titanic  labour  by  the  end  of  the  century — though 
some  districts  lingered  on  under  unwritten  customary  law  until 
the  middle  of  the  eighteenth  century — cannot  be  dealt  with  here. 
It  is  sufficient  to  say  that  the  Custom  of  Orleans  was  revised  and 
reduced  to  writing  by  Achille  du  Harley  and  his  school  in  1583. 
M.  D.  Dalloz  and  M.  H.  Thiercelin,  in  their  Essai  sur  VHistoire 
Generate  du  Droit  Franpais,  dwell  enthusiastically  on  the  marvellous 
work  that  was  accomplished  when  the  teeming  customs  of  France 
were  in  effect  codified.  "  Car  c'est  peut-etre  le  plus  grand  travail 
legislatif  qui  ait  jamais  ete  accompli.  On  ne  peut  mettre  en 
parallele  ni  la  composition  des  compilations  justiniennes,  ni  meme 
le  travail  bien  superieur  de  la  redaction  de  nos  codes .  Bien  plus, 
la  redaction  des  coutumes  n'est  meme  pas  mise  par  mi  les  titres  de 
gloire  de  1'esprit  juriste  fran9ais,  et  cependant  c'est  peut-etre 
le  premier."1 

The  codification  was  opposed  by  the  magistrates  of  the  local 
courts,  the  bailliage,  and  the  senechaussee,  but  it  was  carried 
through  exhaustively,  and  both  actual  practice  and  all  the  cus- 
tomary books  containing  recorded  cases — Le  livre  Coutumier  du 
Greffe — were  examined  with  detailed  care. 

First  we  must  obtain  some  general  notion  of  the  customary 
law  of  France  after  the  sixteenth  century.  The  law  of  persons 
is  full  of  interest.  All  persons  dwelling  in  France  had  been,  from 
the  date  of  the  ordinance  of  Louis  X.,  of  July  3,  1315,  free  persons, 
though,  until  the  eve  of  the  Revolution,  this  rule  of  law  did  not 
apply  to  black  persons  imported  from  the  Colonies .  But  two  years 
before  our  Somerseifs  case  the  law  in  this  respect  was  changed  in 
France.2  Free  men  were  classified  into  Frenchmen,  naturalized 
aliens,  non-naturalized  strangers.  Naturalization  was  a  state 
act  under  the  great  seal,  and  persons  naturalized  had  the  same 
rights  as  Frenchmen.  Non-naturalized  aliens  could  neither 

1  Essai  sur  VHistoire  Generate  du  Droit  Fran^ais,  p.  135. 

2  Cf.  Edits,  October  25, 1706,  art,  5,  et  December  15,  1738  :  U Arrit  Rock, 
rendu  sur  la  plaidoirie  d'Henrion  de  Pansey  en  1770,  fut  le  premier  quidecida 
le  contraire. 


451 

succeed  to  property  or  make  a  will.  For  a  long  time  their  heir  was 
the  King,  but  it  was  eventually  held  that  their  children,  if  resident 
in  France,  could  succeed  to  their  estate.  All  subjects  were  nobles 
or  roturiers,  while  all  roturiers  were  bourgeois  or  villein.1  Both 
these  latter  classes  were  subject  to  seignorial  authority,  and  held 
their  property  subject  to  charges  ;  but  the  bourgeois  formed  a 
definite  community,  enjoying  privileges  accorded  to  their  com- 
mune, and  governed  by  their  own  magistrates.  There  were 
serfs,  but  they  were  continuously  diminished  in  number  by  formal 
enfranchisements  up  to  the  end  of  the  ancien  regime ;  while,  in  fact, 
the  servile,  apart  from  the  taxable,  condition  of  those  who  remained 
unenfranchised  had  become  in  some  measure,  perhaps  largely, 
nominal.  Nobility  was  acquired  by  birth,  by  marriage,  or  by  the 
gift  of  the  Prince.  In  most  customs  nobility  only  descended  through 
the  father,  though  some  districts  recognized  uterine  nobility,  the 
descent  through  the  mother.  About  the  fifteenth  century  the 
idea  of  the  holding  of  office  conferring  nobility  was  entertained, 
and  a  little  later  an  ordinance  of  1470  declared  that  in  Normandy 
the  fact  of  holding  a  fief  involved  nobility  ;  and  when  the  right 
to  hold  fiefs  was  extended  to  all,  the  nobility  was  open  to  all. 
And  thus  there  grew  up  a  nobility  of  place  and  land  in  addition 
to  a  nobility  of  race,  and  at  the  time  of  the  fall  of  the  Monarchy 
there  were  many  Marquesses  and  Counts  who  were,  in  fact,  not 
of  noble  blood.  The  nobles  possessed  various  privileges  of 
jurisdiction  and  exemption  from  la  taille.  The  roturiers  who 
held  land  had  to  pay  to  the  Crown  a  fine,  called  the  "  franc  fief," 
but  various  provinces  and  towns  were  exempt  from  this,  Paris 
having  been  exempt  since  1371 . 

The  age  when  majority  was  attained  differed  for  nobles  and 
roturiers  ;  indeed,  it  varied  even  in  the  case  of  the  nobility,  for 
the  minor  possessor  of  a  fief  had  two  minorities,  one  feudal,  the 
other  customary.  By  the  feudal  law  the  vassal  came  into 
possession  of  his  fief  at  from  eighteen  to  twenty  years  for  males, 
fourteen  to  eighteen  years  for  females.  Up  to  this  age  the  minor 
was  in  the  power  of  his  or  her  guardian.  We  must  not  confuse 
this  period  of  majority,  which  only  referred  to  feudal  rights  and 
services,  with  the  customary  majority,  which  related  to  non- 
feudal  matters.  This  was  ordinarily  fixed  at  twenty-five,  in 

1  Roturier,  "a  plebeian;"  lit.,  a  peasant  who  holds  a  roture — i.e.,  villein- 
land  :  from  Buptura,  the  act  of  breaking  (clods)  and  hence  of  cultivating 
fields.  Thus  Rupturarius  becomes  Rotwrier  (see  A.  Brachet's  Etymological 
Dictionary  of  the  French  Language). 


452  POTHTEB 

imitation  of  the  Roman  law.  The  noble  guardian  acted  in  feudal 
matters,  the  bourgeois  guardian  in  Other  matters.  Some  cus- 
tomary areas  refused  to  recognize  the  bourgeois  guardianship  ; 
others,  such  as  Paris,  limited  it  to  certain  districts.  It  could  only 
be  held  by  parents  ;  it  ended  at  fourteen  for  males  and  twelve 
years  for  females  ;  it  ceased  when  the  guardian  remarried — a 
rule  revived  in  the  Civil  Code  of  to-day.  It  was  a  profitable 
office,  and  the  noble  guardianship  was  certainly  not  less  valuable. 

In  addition  to  these  guardians,  there  was  the  tutor,  and  we 
find  him  from  the  thirteenth  century  both  in  the  districts  of 
written  law  and  the  districts  of  customary  law.  This  creature  of 
Roman  law  appeared  in  the  districts  possessing  a  written  law 
in  the  various  varieties  of  the  Roman  law — Testamentary, 
Legitimate,  Dative  ;  while  in  the  districts  governed  by  customary 
law  only  dative  tutors  were  appointed.  The  customs  recognized 
the  gatherings  of  relations,  called  Conseils  de  families.  Tutors 
were  nominated  at  these  gatherings. 

The  question  of  marriage  is  important.  Customary  law  did 
not  deal  with  it  as  a  contract,  this  being  left  to  the  Canon  law  ; 
but  custom  regulated  the  position  of  the  wife,  and  the  civil  duties 
imposed  on  both  spouses.  The  wife  was  in  the  power  (manus) 
of  the  husband.  She  could  not  sell  his  goods,  or  bind  herself 
by  contract,  nor  suffer  judgment,  without  his  authorization,  unless 
she  was  separate  from  him  or  was  a  public  trader.  He  adminis- 
tered his  wife's  goods  ;  he  held  her  lands,  though  he  could  not 
alienate  them  without  her  consent.  In  some  provinces  (Artois 
and  Auvergne)  simple  betrothal  put  the  daughter  into  the  power 
of  her  future  husband.  Under  most  customs  marriage  emanci- 
pated the  spouses  from  parental  power,  but  by  many  customs 
(Normandy,  Auvergne,  Burgundy)  the  wife  alone  was  emanci- 
pated ;  in  other  provinces  the  roturier  (plebeian)  only  became 
emancipated  a  year  and  a  day  after  marriage  in  a  separate  home. 
In  Bourbonnais  (confiscated  to  the  Crown  by  Francis  I.  in  1531, 
the  modern  Department  of  Allier)  the  father,  when  consenting 
to  the  marriage  of  a  minor  son,  could  stipulate  that  he  remained 
in  his  father's  power.  In  the  districts  governed  by  customary 
law  the  wife  did  not  bring,  and  in  the  districts  governed  by  the 
written  law  she  did  bring,  to  her  husband  a  dot  in  the  Roman 
sense  (dos).  In  fact,  in  some  cases  in  the  customary  districts  the 
dot  consisted  of  two  sums,  half  contributed  by  each  family,  the 
husband's  contribution  being  called  un  augment  de  dot.  In  the 


POTHIBR  453 

districts  under  the  written  law  there  was,  of  course,  the  donatio 
propter  nuptias  given  by  the  husband.  The  wife's  dower  varied 
according  to  the  custom.  In  some  provinces  the  widow  had 
the  usufruct  of  one-half  of  the  immovables  that  her  husband 
possessed  at  her  marriage,  or  which  had  descended  to  him  since 
the  marriage.  Brittany,  Normandy,  Maine,  Anjou,  Poitou,  fixed 
the  dower  at  one-third,  without  distinction  between  nobles 
and  roturiers.  In  Artois  the  dower  was  half  of  the  lands  and 
half  the  plebeian  goods.  In  some  districts  dower  depended  on 
marriage,  in  others  on  consummated  marriage  ;  in  some  districts 
the  dowager  had  the  seisin  of  the  land,  in  others  she  had  to 
demand  it  of  the  heirs.  But  it  became  due  only  on  the  death  of 
the  husband,  though  on  his  civil  death  and  in  various  other 
cases  the  wife  obtained  a  charge  on  his  goods,  called  mi-douaire. 
Very  often  the  property  of  the  goods,  the  use  of  which  formed 
the  dower  of  their  mother,  was  in  the  children.  In  this  case  the 
children  had  to  choose  between  the  succession  of  their  father  and 
the  dowry  of  their  mother.  They  could  not  succeed  to  both. 
The  dower  passed  equally  among  the  children.  It  is  the  fulfil- 
ment of  a  contract,  so  to  speak,  that  the  father  had  entered  into 
with  his  wife  and  future  children  by  her. 

Dower  has  not  passed  into  modern  French  law.  The  sole 
vestige  of  dower  custom  in  the  Code  is  in  Article  1465,  which 
accords  to  a  wife  accepting  or  renouncing  community  of 
goods,  her  costs  of  living  during  the  three  months  and  forty 
days  which  follow  the  dissolution  of  community  of  goods.  The 
doctrine  of  community  of  goods  obtained  throughout  France, 
with  the  exception  of  Normandy,  Auvergne,  and  the  Haute- 
Marche.  The  spouses  jointly  owned  from  the  day  of  marriage 
all  the  movable  property,  all  the  immovable  property  acquired 
during  the  period  of  community,  and  all  the  proceeds  of  the 
joint  property,  and  they  were  jointly  responsible  for  the  debts  of 
either.  In  some  districts  community  of  goods  began  with  the 
betrothal.  The  doctrine  of  community  could  be  excluded  by 
mutual  agreement  before  the  marriage,  or  an  unequal  division 
of  the  property  at  the  end  of  the  marriage  could  be  arranged. 
This  variation  of  the  original  strict  custom  was  apparently  intro- 
duced with  marriage  settlements  in  the  fourteenth  century.  In 
the  districts  governed  by  customary  law  it  often  happened  that 
the  principle  of  community  was  incorporated  in  the  marriage 
settlement,  but  where  the  principle  of  community  was  forbidden 


454  POTHIER 

(as  it  was  by  the  custom  of  Normandy)  this  could  not  be  done. 
This  was  in  some  cases  avoided  by  a  declaration  by  the  parties 
that  they  were  bound  by  the  custom  of  Paris,  which  in  a  sense 
was  the  common  law  of  France  ;  but  the  practice  was  held  to  be 
ineffective  in  Normandy.  By  the  custom  of  Normandy  the  wife 
had  certain  rights  of  succession  to  her  husband  ;  thus  she  had  a 
right  to  one-half  of  immovables  acquired  en  bourgage  during 
the  marriage,  and  she  had  also  a  right  to  half  the  movables. 
The  husband  had  a  right  to  his  wife's  movables,  but  half  could  be 
used  solely  in  the  purchase  of  immovables.  The  dot  was  inalien- 
able, and  passed  to  the  wife  or  her  heirs  on  the  husband's  death, 
as  well  as  the  above  right  of  succession,  or,  in  the  alternative,  her 
husband's  paraphernalia.  If  the  husband  survived,  he  had  a  life 
estate  (usufruct)  whilst  unmarried  (if  there  had  been  a  child  born 
alive)  in  the  income  of  his  wife's  property.  If  he  remarried,  his 
life  estate  was  reduced  to  one-third.  The  law  of  Normandy, 
M.  Laferriere  suggests,  was  an  amalgam  of  Scandinavian,  English, 
and  Neustrian  (Norman  or  Prankish)  law. 

In  the  case  of  the  common  law  of  community  the  husband  could 
dispose  of  all  the  common  property  inter  vivos  ;  he  could  by  his 
will  only  deal  with  his  share.  On  the  dissolution  of  the  marriage 
the  wife  could  accept  or  renounce  the  community.  If  it  was  not 
renounced,  it  continued  with  the  infant  children,  provided  that 
this  was  for  their  benefit.  On  remarriage  each  party  took  a 
third  part  of  the  community  property,  and  the  children  of  the 
first  marriage  the  remaining  third.  The  thirds  became  fourths 
if  the  new  spouse  had  already  got  children  ;  while  the  thirds  be- 
came sixths  if  both  parties  had  children  by  both  marriages.  The 
jus  accrescendi  applied  as  between  brothers  and  sisters.  But 
the  details  of  the  law  of  community  varied  very  greatly,  and 
often  only  applied  to  the  roturier  class. 

When  we  consider  the  general  doctrine  of  rights  of  property 
under  the  feudal  law  in  France,  we  find  in  the  age  when  the  customs 
were  reduced  into  writing  that  the  great  principle  of  division  into 
movables  and  immovables  still  subsisted.  Land  (or  immovable 
property)  consisted  of  fiefs,  of  lands  subject  to  seignorial  rights, 
of  lands  free  of  lord  (aliens).  The  last  were  rare  in  the  customary 
districts,  where  the  maxim  ran,  "No  land  without  a  lord,"  but 
lordless  land  might  be  noble  or  might  be  roturier.  These  types 
of  land-holding  gave  rise  to  a  most  complicated  land  law  and  an 
almost  inexplicable  system  of  land  charges,  that  in  some  cases  ran 


POTHIER  455 

with  the  land.  The  French  law  of  land  has  not  yet  received  the 
attention  of  a  school  of  jurists  at  all  comparable  with  the  school 
created  by  Pollock  and  Maitland  in  England.  The  French  doctrine 
of  seisin  or  possession  was  originally  of  extraordinary  elabora- 
tion, and  throws  much  light  on  the  analogous  doctrine  in  Eng- 
land.1 The  doctrine  had  certain  applications  to  movables  that 
are  of  interest  if  considered  in  connection  with  the  earliest  doc- 
trine of  seisin  in  England.  It  is  not  possible  here  to  trace  in 
detail  the  French  law  of  seism  or  the  law  that  regulated  property 
in  its  relation  to  the  family,  a  phase  of  law  that  scarcely  passed 
the  Channel.  One  may,  perhaps,  however,  say  one  word  as 
to  the  feudal  doctrine  of  amortissement — the  freeing  of  land 
from  feudal  burdens.  In  every  case  this  required  under  the 
customary  law  the  consent  of  the  successive  overlords  up  to  the 
King  himself.  Hence  it  became  a  doctrine  (despite  the  resistance 
of  lower  lords)  that  the  King  alone  had  le  droit  d'amortir. 
As  this  doctrine  had  special  application  to  persons,  the  enfran- 
chisement of  serfs  was  a  royal  prerogative,  though  the  lords  had 
a  right  to  claim  an  indemnity  from  the  freed  men. 

When  we  turn  to  the  law  of  succession  we  find  that  in  the 
districts  governed  by  the  written  law  succession  was  governed 
by  the  law  of  Justinian  (Novellce,  118,  127),  while  in  the  places 
subject  to  customary  law  there  were  endless  customs  as  to  suc- 
cession. The  main  distinction  in  the  customary  law  was  be- 
tween succession  to  fiefs  and  lordless  land  of  noble  origin  on 
the  one  hand,  and  all  other  property  of  any  origin  on  the  other. 
With  respect  to  the  fiefs,  the  principle  of  primogeniture  applied 
though  not  always  the  primogeniture  of  males,  as  is  seen  from 
the  customs  of  Anjou,  Poitou,  and  Touraine.  Throughout  the 
North  of  France  this  principle  is  attached  to  the  land  itself. 
Thus,  if  non-nobles  acquired  land  which  gave  them  a  title  with- 
out ennobling  them,  the  "  nobility  "  of  the  land,  so  to  speak, 
set  the  principle  of  primogeniture  at  work  ;  while,  on  the  other 
hand,  if  land  were  possessed  by  a  noble  which  nevertheless  was 
not  "  noble  land,"  the  principle  did  not  apply.  The  full  elabora- 
tion of  the  customary  laws  of  succession  can  be  gathered  from 
Dalloz.  One  may  note  that  the  customary  law  recognized  wills  ; 
but  the  power  was  limited  under  different  customs  differently  : 

1  The  French  lawyers  used  the  technical  words  "  vest  "  and  "  devest  "  to 
indicate  the  process  by  which,  on  a  transfer  of  property,  the  old  possessor 
had  to  suffer  disseisin,  and  the  new  possessor  had  to  prove  the  process  by 
which  he  became  seised. 


456  POTEHER 

it  might  be  a  third  or  a  fourth,  or  even  the  whole,  that  came 
under  the  will  of  the  testator.  The  property  that  could  not 
be  disposed  of  by  will  passed  to  the  customary  heirs.  Again, 
the  persons  to  whom  the  property  could  be  left  were  limited ; 
the  will  was  subject  to  la  legitime.  Thus,  under  the  custom 
of  Paris,  a  child  had  a  right  to  the  one-half  it  would  have  had  if 
the  parent  had  died  intestate. 

Something  must  be  said  as  to  the  customary  and  written  law 
of  obligations,  a  subject  that  owes  so  much  to  Pothier.  The 
customary  law  of  France  adopted  during  the  thirteenth  century 
the  Roman  law  on  the  subject  of  obligations.  The  jurists  of  the 
sixteenth  century  developed  the  modern  theory  of  contracts,  as 
it  is  set  forth  in  the  French  code.  We  should  note  that  many 
customary  codes  recognized  communities  as  property  holders 
subject  to  the  law  of  obligations.  Quite  early  it  was  recognized 
that  a  sale  by  legal  authority  gave  a  good  title  to  the  property 
sold.  The  laws  of  the  Church  condemned  the  whole  notion  of 
interest  on  money,  but  this  doctrine,  which  obtained  until  the 
law  of  October  2,  1789,  was  evaded  in  various  ways.  The 
mortgage,  though  repeatedly  condemned,  came  into  general  use 
in  the  early  Middle  Ages,  and  held  its  ground.  The  enfranchise- 
ment of  the  serfs  threw  much  labour  on  the  market,  and  gave  a 
larger  activity  to  the  contract  of  service. 

When  we  enter  the  sixteenth  century  we  find  the  King  all- 
powerful  ;  the  dangerous  vassals  as  well  as  the  practically  in- 
dependent republics  known  as  "  communes  "  have  disappeared. 
We  have  towns  under  local  government ;  we  have  trading  com- 
panies, such  as  the  Merchants  of  Paris,  gaining  great  influence  ; 
we  have  the  Universities  and  other  great  Corporations — all  forces 
changing  the  face  of  society.  We  see  a  reigning  house  controlled 
by  the  hereditary  principle,  and  ruling  over  lands  inalienable  by 
the  Crown  but  taxable.  In  this  society  individual  liberty, 
despite  the  sittings  of  the  States-General,  had  no  guarantee  ;  the 
lettre  de  cachet  was  in  active  use  to  the  end.  On  the  other  hand, 
property  was  adequately  protected  by  the  King,  despite  the 
weight  of  occasional  taxation.  From  the  sixteenth  century 
onward  the  King  was  supreme  as  legislator  and  administrator, 
and  the  written  and  the  customary  laws  were  supplemented  by 
Crown  Ordinances. 

The  ordinances  of  Villers-Cotterets  (1539),  of  Orleans  (1561), 
of  Pvoussfflon  (1563),  of  Moulins  (1566),  of  Blois  (1579),  really 


POTHIEE  457 

formed  a  supplementary  code  dealing  with  (1539)  the  adminis- 
tration of  justice  and  forms  of  procedure,  (1561)  the  clergy,  with 
general  administration,  (1563)  commercial  law  and  judicial 
administration,  (1566)  the  abolition  of  communal  judges,  judicial 
efficiency,  the  Crown  right  to  create  dignitaries,  (1579)  religion, 
education,  the  administration  of  justice,  Crown  servants,  Crown 
lands,  taxation.  The  same  age  saw  many  ordinances  dealing 
with  religion.  In  the  sphere  of  law  we  have  seen  that  customary 
law  had  already  become  fixed.  The  ordinances  of  the  sixteenth 
century  amended  legal  machinery  with  great  elaboration,  but  it 
did  not  deal  with  the  status  of  persons  or  the  rights  of  property, 
though  it  dealt  in  some  measure  with  property  in  connection 
with  the  family  regarded  as  an  entity. 

But  the  ordinances  had  the  effect  of  unifying  the  whole  system 
of  customary  law,  of  stamping  upon  it  the  specific  national 
character  which,  despite  its  indebtedness  to  Roman  and  Germanic 
influences,  was  and  is  a  unique  thing — personality.  So  we  see 
a  judicial  and  administrative  system  arise  capable  of  moulding 
customary  law  into  its  final  form,  while  the  law  as  to  family  life 
was  rounded  off  and  made  complete.  Thus,  in  February,  1556, 
Henry  II.  forbade  clandestine  marriages,  and  introduced  the 
famous  rule  which  still  persists  that  a  person  under  paternal  power 
cannot  contract  marriage  without  the  consent  of  his  relatives. 
It  was  not  possible  in  that  age  for  such  a  marriage  to  be  declared 
null,  but  it  was  possible  to  deprive  the  spouses  of  all  the  advan- 
tages of  their  family  system,  to  disinherit  the  child,  to  revoke  all 
premarital  gifts,  to  cancel  all  rights  of  succession.  Many  other 
provisions  as  to  the  form  of  marriage  date  from  this  time.  The 
rights  of  second  husbands  in  the  fortune  of  their  wife  was  strictly 
limited  by  ordinance  (1560,  1579),  and  these  provisions  are 
repeated  in  the  code  of  to-day  (Art.  1098). 

The  ordinance  of  Moulins  (1566)  introduced  a  profound  change 
into  the  law  of  evidence,  by  the  substitution  of  written  for  per- 
sonal evidence  in  all  classes  of  evidence  where  strict  proof  (as 
of  birth,  marriage,  death)  is  necessary.  It  was  this  period,  too, 
that  gave  to  the  legal  system  adequate  officers  to  carry  the  law 
into  effect.  Thus  there  existed  in  the  sixteenth  century  (a)  no- 
taries of  the  Crown,  (b)  notaries  of  the  Seigneur,  and  (c)  Apostolic 
notaries  to  deal  with  questions  of  the  Canon  law.  The  ordinances 
regulated  the  form  of  notarial  acts.  The  notary  or  the  parish 
priest  had  to  take  a  part  in  the  formality  of  will-making.  Again, 


458 


POTHIER 


we  see  by  1579  a  regular  class  of  counsel  (les  avocats  generaux), 
and  a  regular  class  of  solicitor  (les  procureurs  generaux),  under- 
taking argument  and  the  preparation  of  cases.  There  was  also 
by  this  date  the  class  of  counsel  exactly  equivalent  to  our  King's 
Counsel  (les  avocats  du  roi). 

The  idea  of  codifying  the  entire  French  law  was  in  the  mind 
of  Henry  III.,  and,  in  fact,  Barnabe  Brisson  in  1587  issued  his 
draft  Code  de  Henri  III. ;  but  this,  though  revised  in  the  reign 
of  Henry  IV.,  never  acquired  the  force  of  law.1 

The  period  of  the  great  ordinances  (1539-1579)  was  the  be- 
getter of  an  age  of  great  jurists.  The  French  Renaissance  school 
of  law  may  be  said  to  begin  with  the  Roman  lawyers,  Alciati 
(1492-1550),  who  taught  at  Avignon  and  Bourges,  and  his  pupil, 
Cujas  (1520-1590),  and  Doneau  (1527-1591),  the  first  of  the  purely 
philosophical  jurists  ;  Jacques  Godefroy  (1587-1652),  who  edited 
the  Theodosian  Code  ;  and  Denys  Godefroy,  who  annnotated 
Justinian,  Douaren,  Govean,  Hotman,  Brisson,  and  Pierre 
Pithou  (pupil  of  Cujas).  The  work  of  these  Roman  lawyers  laid 
a  basis  for  the  study  of  French  law.  The  first  scientific  student 
of  French  jurisprudence  was  the  indefatigable  Charles  Dumoulin 
(1500[?]-December  28,  1566). 

"L'ardeur  au  travail.de  Dumoulin  etait  extreme  ;  on  le  saifc 
par  des  temoignages  irrecusables  d'ailleurs,  et  le  caractere  et 
Pimmensite  de  ses  productions  1'attesteraient  suffisamment. 
Elle  eut  pour  ob  jet  toutes  les  parties  du  droit :  le  droit  coutumier, 
le  droit  feodal,  le  droit  remain,  le  droit  canonique  et  1'histoire ; 
mais  c'est  surtout  vers  le  droit  coutumier,  le  droit  feodal  et  la 
matiere  des  obligations  que  se  dirigerent  ses  efforts.2 

He  taught  law  chiefly  at  Dole,  but  his  impetuosity  in  public 
affairs  drove  him  into  exile,  and  much  of  his  work  was 
done  abroad.  His  greatest  work  was  his  commentary  on  the 
customs  of  Paris.3  The  first  title  in  this  great  work  is  de 
Feudis,  comprising  seventy- two  sections,  and  occupying  1305 
columns  in  the  small  type  great  double-column  quarto  pages 

1  In   1615  L.   Charondas  le  Caron,  a   Parisian  jurist,  issued  in  a  vast 
volume  the  Code  "  de  puis  augmente  des  Edictes  du  Roy  Henry  IV.  et 
Louis  XIII.,    a  present  regnaut,  avec    la    Conference  des   Ordinances,  et 
rapporte  aux  anciens  Codes  de  Theodose  et  de  Justinian,  et  aux  Basiliques." 

2  Essai  sur  VHistoire  du  Droit  Fran^ais  (Dalloz),  p.  215,  on  which  this  his- 
torical sketch  is  based. 

3  See  the  collected  edition  of  his  works  in  four  volumes,  Caroli  Molinacei 
Franciae  et  Germaniae  celeberrimi  jurisconsulti  .  .  .  Opera  quce  extant  omnia, 
Paris,  1658,  with  a  life  of  the  author  prefixed  to  the  first  tome. 


POTHIER  459 

of  this  edition.  The  second  title  is  De  censu  et  juribus 
Dominicalibus,  dealing  with  the  obscure  law  of  seignorial 
rights.  This  contains  twenty -three  sections,  and  takes  us 
to  column  1619  of  the  first  volume.  The  remaining  titles 
dealing  with  the  customs  of  Paris  were  published  after 
Dumoulin's  death  :  (3)  De  complainte  en  cos  de  saisine  et  de 
nouvellete  ;  (4)  De  prcescriptionibus  ;  (5)  De  personalibus  et  Hypo- 
thecariis  actionibus ;  (6)  de  servitutibus  realibus,  urbanis  et 
rusticis ;  (7)  De,  testamentis,  donationibus,  legatis,  executoribus 
testamentorum  ;  (8)  De  custodia  nobili  ;  (9)  De  custodia  paganica  ; 
(10)  De  communione  bonorum ;  ( 1 1 )  De  successionibus  in  linea  directa  ; 
(12)  De  Doariis  ;  (13)  De  successione  in  linea  collaterali  ;  (14)  De 
donatione  mutua  inter  conjugis  ;  (15)  De  pignorationibus,  seques- 
trationibus,  et  executione  sententiarium  et  instrumentorum  ;  (16)  De 
retractu  jure  proximitatis  ;  (17)  De  subhastationibus  ;  (18)  De 
cceteris  articulis  consuedinariis.  With  this  last  title  the  first  tome 
ends  at  column  1795.  The  second  tome  gives  us  a  lengthy  treatise 
on  the  French  law  of  contracts  and  rents  and  loans.  The  third 
tome  still  deals  with  French  law,  and  includes  a  tract,  De  Vorigine, 
progrez,  et  excellence  du  Royaume  et  Monarchie  des  Francois.  The 
fourth  tome  is  largely  filled  with  tracts  on  Roman  law,  but  also 
deals  with  various  French  customary  areas  :  La  Prevoste  et 
Vicomte  de  Paris,  Meaux,  Melun,  Sens,  Estampes,  Montfort, 
Mantes,  Senlis,  Clermont,  Valois,  Troyes,  Chaumont,  Vitri, 
Vermandois,  Chalons,  Rheims,  Amiens,  Beauvoisis,  Monstrueil, 
S.  Omer,Chauny,  Boullenois,  Estappes,  Comte  d'Artois,  Bour- 
gongne,  Auxerre,  Nivernais,  Ville  de  L'Isle,  Chartres,  Mons, 
Lorris,  Orleans,  Touraine,  Anjou,  Maine,  Blois,  Dunois,  Berry, 
Bourbonnois,  Auvergne,  La  Marche,  Lodunois,  Poictou, 
Augoulemois,  La  Rochelle,  Bordeaux,  Bretagne,  as  well  as 
the  ordinance  of  1539.  The  volume  of  work  is  enormous,  and 
it  forms  a  magnificent  storehouse  for  research  in  late  Medieval 
French  law.  The  study  of  Charles  Dumoulin  necessarily  lies 
behind  any  adequate  conception  of  the  work  of  later  French 
jurists  or  of  the  evolution  of  French  law.  It  is  the  first 
trumpet  note  of  revolt  against  feudalism.  Moreover,  the 
sidelights  on  English  law  are,  we  must  believe,  of  profound 
importance. 

Two  treatises  in  the  fourth  tome  are  of  great  importance  from 
the  point  of  view  of  modern  law  :  the  treatise  De  Verborum 
obligatio  (col.  128),  and  the  treatise  Extricatio  labyrinthi  Dividui 


460  POTHIER 

et  Individui  (col.    188).     Of  this  later  treatise  the  essay  above 
referred  to  says  : 

"Dans  son  traite  de  Dividuo  et  Individuo,  Dumoulin  cre'e,  on 
peut  dire,  la  theorie  fran9aise  de  1'indivisibilite  des  obligations, 
et  Pothier  a  pu  se  borner  a  analyser  et  a  co-ordonner  les  doc- 
trines de  Dumoulin  pour  en  faire  sortir  la  doctrine  qu'il  expose 
dans  son  Traite  des  obligations,  et  qui  devait  venir  se  condenser 
dans  deux  articles  du  Code  Napoleon." 

The  other  jurists  of  this  great  juridical  period  were  the  Breton 
feudalist,  D'Argentre  (1519-1590);  Guy-Coquille  (1523-1603), 
Charondas  (1536-1617),  the  authority  on  French  customary  law  ; 
Rene  Choppin  (1537-1606),  who  specialized  on  the  custom 
of  Anjou,  Chassaneux  (1480-1541),  an  authority  on  Burgundian 
customs  ;  Loysel  (1536-1617),  an  authority  on  customary  law  ; 
and  Loyseau  (1566-1627),  the  latest  and  perhaps  the  clearest 
exponent  of  the  French  juridical  system. 

A  word  must  be  said  as  to  the  royal  ordinances  of  the  seven- 
teenth century,  for  they  show  the  royal  authority  at  its  height 
unhampered  by  powerful  feudal  lords  or  by  religious  turmoil. 
Under  Henry  IV.  the  whole  country,  its  finances,  its  industries, 
its  agriculture,  and  its  defences,  were  reorganized,  and  the  mani- 
festations of  constitutional  life  that  came  into  being  at  his  death 
were  less  a  sign  of  the  decay  of  kingship  than  of  the  growing 
sense  of  national  unity  and  efficiency.  Richelieu  (in  1641)  for- 
bade the  Parlements  and  other  courts  of  justice  to  interfere  in 
public  affairs.  Mazarin  was  not  slow  to  adopt  the  same  policy, 
and  it  was  rather  by  strength  of  policy  than  anything  else  that 
the  code  of  constitutional  liberty  set  forth  in  that  significant 
year  1648  did  not  become  law.  Louis  XIV.  was  strong  enough 
to  reduce  the  Parlements  to  their  judicial  functions,  and  his  reign 
gave  to  Frenchmen  the  glory  that  sometimes  is  an  apt  substitute 
for  liberty.  In  1692  the  Crown  announced  the  existence  of  a 
right  of  eminent  domain  with  respect  to  all  land  in  the  kingdom. 
There  were  to  be  no  more  allodial  lands  ;  the  English  doctrine 
that  there  is  no  absolute  right  to  land  in  any  subject  was  adopted. 
The  King  thus  resumed  his  strictly  feudal  position  as  le  seigneur 
suzerain.  During  the  century  the  distinction  between  les  biens 
nobles  ou  roturiers  was  maintained,  and  the  latter  only  were 
subject  to  the  taitte.  The  domain  rights  were  maintained,  though 
they  were  often  confused  with  the  seigneurial  rights. 

This  is  not  the  place  in  which  to  discuss  the  legal  position 


POTH1KR  461 

secured  by  the  Church  in  this  age,  though  it  should  be  noticed 
that  the  declaration  of  the  clergy  of  1682  laid  the  basis  of  the 
whole  system  of  concordats  between  Church  and  State.  The  civil 
ordinances  of  the  century  left  the  customary  law  standing,  but 
the  law  of  obligation  was  largely  affected  ;  whilst  in  1667  French 
civil  procedure  was  codified,  and  in  1673  the  commercial  law  of 
France  received  complete  treatment.  In  the  essay  on  the  history 
of  French  law,  to  which  reference  has  repeatedly  been  made,  we 
have  a  careful  account  of  the  legislation  as  to  obligations.  In 
1606  the  application  of  the  Velleian  Senatus  Considtum  to 
French  law  was  forbidden  by  the  Parlement  of  Paris,  and  this 
position  was  largely  adopted  in  the  districts  subject  to  customary 
law.  The  general  reform  of  procedure  was  attempted  by  the 
code  or  ordinance  of  1629,  in  itself  ineffective,  and  the  last 
of  the  many  attempts  at  codification  that  distinguished  the 
sixteenth  century.  A  new  codification  movement  with  respect 
to  procedure  began  with  the  ordinance  of  1667  on  civil  procedure, 
which  was  the  basis  of  the  code  of  1806.  It  also  dealt  with  the 
question  of  proof.  In  1670  the  code  of  criminal  procedure  was 
issued,  to  be  followed  in  1673  by  the  commercial  code,  drafted 
by  the  jurist  Savary.  The  last  thirty  years  of  the  reign  saw 
little  more  legislation.  In  twenty  years  Louis  Quatorze  had 
done  enough  to  earn,  if  not  to  secure,  the  title  of  the  French 
Justinian.  In  this  age  the  practical  jurist  came  to  give  effect 
to  practical  codes  :  the  labours  of  Brodeau  and  Lebrun  largely 
lay  behind  the  work  of  Pothier,  while  legal  philosophy  and 
speculation  were  kept  alive  by  Grotius  and  Domat. 

The  most  important  legal  event  in  the  earlier  years  of  Louis  XV. 
(apart  from  the  growing  constitutional  power  of  the  Parlement  de 
Paris)  was  the  Edict  of  1738,  which  formulated  the  procedure 
that  governs  even  to-day  the  appellate  jurisdiction  of  the  Cour 
de  Cassation.  A  right  of  appeal  in  error  against  the  decision  of 
a  Parlement  was  recognized  as  early  as  1302  ;  la  proposition 
d'erreur  could  from  that  date  be  brought  against  a  decision  cf 
a  Parlement.  The  principle  was  confirmed  by  a  series  of  six- 
teenth-century ordinances,  but  the  right  of  appeal  was  abolished 
by  the  procedure  reforms  of  1667,  though  the  Crown  reserved 
the  right  to  declare  all  judgments  contrary  to  its  ordinances  null. 
Thus  the  Crown  (le  conseil  prive  or  conseil  du  roi)  became  the 
Court  of  Appeal  by  virtue  of  its  inherent  jurisdiction.  The 
principle  was  enforced  by  D'Aguesseau  in  the  Reglement  de 


462  POTHTER 

Conseil  of  June  28,  1738  :  an  appeal  to  the  Cour  de  Cassation  was 
only  to  be  allowed  where  there  had  been  a  plain  breach  of  a 
precise  law.  It  was  frankly  stated  that  the  object  of  the  appeal 
was  rather  to  maintain  the  authority  of  the  ordinances  as  against 
the  Parlements  than  to  further  the  cause  of  justice.  The  struggle 
with  the  Parlements  was  the  notable  fact  of  the  last  days  of  the 
ancien  regime.  They  represented  and  kept  alive  through  the 
centuries  the  constitutional  idea.  It  was  a  function  worthy  of  a 
juridical  assembly  ;  but  we  must  remember  that  the  establish- 
ment of  an  appellate  jurisdiction  emanating  from  the  Crown  in 
check  of  Parliament  was  likewise  a  constitutional  development 
that  also  made  for  liberty  and  justice. 

But  if  the  constitutional  idea  was  germinating  rapidly  during 
the  reign  of  Louis  XV.,  this  period  was  fruitful  in  amendments  of 
the  civil  law.  In  1729  the  rights  of  succession  of  a  mother  to 
property  of  her  children  under  certain  circumstances  (which  had 
been  destroyed  by  the  edict  of  Saint  Maur  of  1567)  were  restored. 
The  ordinance  sur  les  donations  of  1731  was  a  step  towards  the 
unification  of  the  written  and  the  customary  law  at  which  the 
great  French  jurists  from  Dumoulin  onward  had  aimed. 
D'Aguesseau  felt  acutely  the  necessity  for  uniformity  of  law, 
independent  of  places  or  persons.  This  doctrine  is  laid  down 
with  great  precision  in  the  preamble  to  the  ordinance  of  1 738.  The 
ordinance  as  to  donationes  inter  vivos  and  donationes  mortis  causa 
is  a  step  in  this  direction.  The  new  law  laid,  down  that  all  non- 
onerous  donations  were  revoked  by  the  birth  of  issue.  D'Aguesseau 
next  turned  to  the  law  of  wills,  with  the  difficult  problem  before 
him  of  reconciling  the  Roman  and  the  customary  law.  His  solu- 
tion appeared  in  the  ordinance  of  August,  1 735,  dealing  with  the 
form  of  wills  and  the  witnesses  to  wills,  with  the  principle  of 
heirships  and  its  relation  to  the  locus  of  the  property  affected. 
The  nuncupative  will  (in  the  presence  of  seven  witnesses)  was 
preserved  when  sanctioned  by  custom.  It  became  le  testament 
authentique  of  the  Code  Napoleon.  The  principle  of  the  institu- 
tion of  heirs  was  retained  in  the  districts  where  it  was  in 
force.  The  Roman  law  (e.g.,  the  lex  Falcidia)  was  carefully 
applied  to  the  modern  case.  Thus  the  old  cleavage  was 
still  recognized  between  the  countries  of  written  and  un- 
written law,  but  the  ordinance  found  where  possible  a  common 
ground  for  the  two  systems  of  law,  and  prepared  the  way  for 
codification.  In  1747  came  the  ordinance  as  to  the  law  of 


POTHIER  463 

substitutions,  which  clearly  laid  down  the  limitations  of  that 
branch  of  Roman  law  in  its  relations  to  gifts  inter  vivos  or  by 
will.  The  last  ordinance  of  great  importance  to  the  civil  law 
under  the  ancien  regime  was  issued  in  1771,  the  year  before  the 
death  of  Pothier  :  the  protection  of  mortgagees,  who  could  be 
defrauded,  since  the  sixteenth  century,  by  the  simple  expedient 
of  a  sale  of  the  land  under  an  order  of  Court.  Thenceforward 
the  place  of  a  decree  of  the  Court  was  taken  by  a  document 
issued  by  the  Conservateur  des  hypotheques  in  each  district. 
The  letters  (of  ratification  of  sale)  could  only  be  issued  after 
public  notice  had  been  given  that  the  land  was  for  sale.  If  the 
mortgagees  did  not  come  in  and  make  their  claim  within  two 
months  after  public  notice,  the  purchaser  acquired  a  good  title 
free  from  incumbrances. 

The  reign  of  Louis  XV.  almost  coincided  with  the  working 
life  of  Pothier.  We  are  now  in  a  position  to  consider  his  work 
in  the  light  of  the  legal  system,  the  intricacies  of  which  have 
been  barely  indicated  here.  In  the  above-mentioned  Essai  sur 
rHistorie  Generate  du  Droit  Fran^ais,  Pothier  is  written  of  in  the 
following  fashion  : 

"  Que  dirons-nous  de  Pothier  que  ne  sachent  tous  deux  qui 
s'interessent  a  la  Science  du  droit  ?  les  traites  seront 
toujours  les  meilleurs  commentaires  du  Code,  dont  les  redacteurs 
lui  ont  tant  emprunte.  Par  ]a  clarte  de  son  exposition,  la 
lucidite  de  ses  apery  us,  la  surete  de  sa  doctrine,  qui  toutefois 
ne  sonde  pas  au  dela  des  profondeurs  necessaires  pour  etablir 
les  fondations  d'une  jurisprudence  applicable  et  pratique, 
plutot  que  philosophique  et  elevee,  par  tout  cela,  Pothier  est 
le  jurisconsulte  par  excellence  ;  mais  il  manque  a  ces  qualites 
eminemment  francaises  celle  de  la  vivacite  du  tour  et  de  1'ex- 
pression  comme  ecrivain.  H  est  vieux  par  la  maniere,  1'etant 
par  1'esprit  en  dehors  des  matieres  du  droit.  Les  grands  juris- 
consultes  du  xvie  siecle  etaient  de  leur  temps.  Dumoulin, 
Duaren,  les  Hotman,  etc.,  etaient  meles  au  mouvement  politique 
et  au  mouvement  religieux  de  leur  epoque.  Ceux  du  xviiie 
siecle  semblent  avoir  vecu  en  claustration,  au  millieu  d'une 
societe  dont  I'etat  moral  se  transformait.  Pothier  etait  con- 
temporain  de  Rousseau  et  de  Voltaire,  et,  a  la  lecture  de  ses 
traites,  nul  ne  le  croirait.  Mais  le  bon  sens,  la  raison  claire 
et  simple,  ne  perd  jamais  son  autorite  ;  il  est  de  tous  les  temps  ; 
et  malgre  ce  qu'il  est  permis  de  penser  sur  ce  que  les  livres  de 
Pothier  laissent  a  desirer,  ils  ne  vivront  pas  moins  par  1'autorite 
du  bons  sens,  qui  jamais  ne  faiblit  chez  lui." 

We  must  now  return  to  the  life  of  Pothier,  and  trace  out  the 
order  of  the  publication  of  his  treatises,  and  the  relation  of  his 


464  POTHIER 

work  to  the  legal  systems  described  above.  The  work  which 
underlay  all  else  was  his  prolonged  study  of  Roman  law.  For 
years  he  devoted  his  leisure  to  the  problem  of  the  order  of  the 
text  of  the  Pandects,  and  in  1736  he  communicated  some  essays 
on  the  subject  to  M.  Prevot  de  la  Jannes,  who  at  once  laid  the 
work  before  the  Chancellor  d'Aguesseau.  D'Aguesseau  saw  the 
great  importance  of  Pothier's  scheme  of  reconstruction  of  the 
text  of  the  Pandects,  and  gave  him  every  encouragement  by 
letter,  comparing  his  work  to  that  of  Vigelius.  In  September, 
1736,  Pothier  went  to  Paris  and  saw  the  Chancellor  on  the  subject, 
and  from  time  to  time  he  sent  to  the  Chancellor  specimens  of  the 
work.  In  the  second  edition  of  Pothier's  work  (published  in 
1781)  we  have  printed  letters  from  the  illustrious  Chancellor  to 
Pothier  on  the  subject  of  this  work  written  between  1736  and 
1 745.  The  work,  the  result  of  a  quarter  of  a  century  of  incessant 
labour,  was  published  in  1748  under  the  title  Pandectce  Justiniance 
in  novum  ordinem  digestce  (Paris  :  three  volumes  in  folio).  It  was 
a  work  that  had  become  essential.  The  labours  of  many  jurists 
had  not  cleared  up  the  order  of  the  text,  and  till  that  problem 
was  solved  Roman  law  could  not  come  into  its  own.  Pothier 
performed,  wrote  M.  Dupin  in  1825,  what  the  sixty  jurists 
appointed  by  Justinian  failed  to  do  for  the  laws  of  their  own 
country.  The  need  for  such  a  work  is  trenchantly  expressed  by 
a  modern  French  writer  on  Pothier  : 

"L'etude  de  cette  science  etait  herissee  d'obstacles  presque 
insurmontable,  a  cause  du  desordre  et  de  la  confusion  qui 
regnaient  dans  le  Digeste  justinien,  oil  les  fragments  precieux 
des  anciens  jurisconsultes,  les  decisions,  les  textes,  les  extraits, 
les  interpretations,  les  commentaires,  tous  les  materiaux  de 
1 'edifice  immense  du  droit  remain  etaient  entasses  pele-rnele, 
sans  liaison,  sans  suite,  sans  critique,  sans  niethode  et  dans  un 
desordre  rendu  plus  inextricable  encore  par  les  modifications 
posterieures  et  par  les  erreurs  des  copistes.  Pothier  entreprit 
de  porter  la  lumiere  au  millieu  de  ces  tenebres,  de  retablir 
1'ordre  au  milJieu  de  ce  chaos,  d'accomplir  enfin  I'oBuvre  devant 
laquelle  avaient  recule  les  jurisconsultes  les  plus  celebres,  que 
Cujas  lui-meme  n'avait  qu'incompletement  essayee  et  que  le 
vaste  genie  du  Chancelier  de  1'Hospital  avait  revee.  Pendant 
vingt  ans,  il  interrogea  les  anciens,  etudia  les  modernes,  devora 
tous  les  commentateurs,  poursuivant  raccomplissement  de  son 
plan  avec  une  perseverance  plus  forte  que  les  obstacles  et  en 
terminant  enfin  1'execution  apres  des  prodiges  de  travail,  de 
sagacite  et  de  scrupuleuse  erudition."  * 

1  Art.   "Pothier,"      La  Rousse's    Grand  Dictionnaire    de  XIXe  Siede, 
pp.  1517-18. 


POTHIER  465 

Pothier  based  his  work  on  the  current  text  of  the  Pandects 
and  the  Code,  supplemented  by  the  work  of  Cujas  and  Dumoulin. 
The  great  treatise  opens  with  a  Prolegomena  dealing  first  with 
the  sources  of  Roman  law,  with  the  plebiscite,  and  the  senatus 
consutia,  with  the  Pretorian  law,  with  the  interpretation  of  the 
Roman  jurists.  A  second  part  of  the  Prolegomena  gives  us 
an  account  of  the  great  jurisconsults,  whom  he  classifies  as 
follows  :  (1)  Those  before  the  time  of  Cicero  ;  (2)  the  Ciceronian 
jurists  to  the  age  of  Christ ;  (3)  the  jurists  from  the  Christian  era 
to  the  age  of  Hadrian  ;  (4)  from  Hadrian  to  Gordianus  (A.D.  117- 
240) ;  (5)  jurists  of  uncertain  date.  Ninety-two  classical  jurists 
are  enumerated,  with  some  account  of  the  work  of  each.  Some 
juridical  writings  immediately  after  the  classical  period  are  next 
mentioned .  A  note  follows  on  the  Roman  schools  of  legal  thought, 
Proculian  and  Sabinian.  A  third  part  discusses  the  labours  of 
Justinian.  The  work  then  opens  with  a  considerable  treatise, 
giving  and  discussing  the  fragmentary  text  of  the  twelve  tables, 
followed  by  the  extant  fragments  of  the  Perpetual  Edict,  and 
these  lead  us  up  to  the  Digest  or  Pandects  of  Justinian.  These 
208  folio  pages  of  introduction  are  a  miracle  of  unassuming,  un- 
suspected learning.  Pothier,  in  dealing  with  the  Digest,  pre- 
served the  old  arrangement  of  the  titles,  which  was  the  order  of 
the  Perpetual  Edict,  but  under  these  main  headings — each  title 
having  a  full  introduction — the  texts  are  arranged  in  methodical 
order,  and  the  true  place  of  every  text  is  found.  The  labour 
of  recreating  the  correct  order  of  the  text  was  immense.  It 
represented  years  of  work  by  one  of  the  fastest  and  most  method- 
ical workers  who  ever  lived.  It  is  impossible  to  turn  to  the  five- 
volume  edition,  published  in  Paris  in  1825,  of  this  work  without 
reflecting  not  only  on  the  achievement  itself  and  all  that  that 
achievement  meant  for  subsequent  workers  in  the  field  of  Roman 
law,  but  also  on  the  immense  range  of  legal  knowledge  that  the 
very  production  of  such  a  work  must  have  involved  and  rein- 
forced. When  Pothier  finally  issued  his  edition  of  the  Pandects, 
his  must  have  been  the  best-stored  mind,  in  the  matter  of  the 
principles  of  law,  in  the  world.  And  we  have  to  remember  that 
Pothier  was  not  working  at  Roman  law  as  a  sole  subject :  all  the 
while  he  was  pursuing  the  practice  of  the  law  of  his  own  country, 
he  was  in  contact  with  the  finest  jurists  of  his  day,  and  was,  in  fact, 
working  hard  at  the  legal  historical  problems  of  his  own  country.1 

1  It  should  be  noted  that  Pothier  was  assisted  in  the  work  by  M.  de 
Guienne,  an  avocat  du  parlement,  who  was  responsible  for  the  literary  com- 

31 


466  POTHIEB 

The  conclusion  of  his  work  was  marked  by  a  complete  break- 
down in  health,  the  result  not  only  of  fever,  but  of  prolonged 
labours,  from  which  recovery  was  only  slowly  achieved.  In 
October,  1649,  his  old  friend  and  helper,  M.  de  la  Jannes,  died, 
and  the  Chancellor  D'Aguesseau  appointed  Pothier  to  the  vacant 
Professorship  of  French  Law  in  the  University  of  Orleans.  The 
other  candidate  for  the  post  was  M.  Guyot,  and  each  sought  to 
yield  the  chair  to  the  other ;  and  Pothier  was  not  satisfied  till 
M.  Guyot l  was  associated  with  him  in  the  work.  Pothier  seems 
to  have  been  an  ideal  teacher.  M.  le  Trosne  tells  us  : 

"  H  scavoit  tellement  cacher  la  superiorite  du  Maitre,  que  les 
Btudians  croyoient  converser  avec  un  ami.  Ses  1090118  etoient 
des  conferences  dans  lesquelles  il  soutenoit  1'attention  par  des 
interrogation  qui  mettoient  les  jeunes  gens  a  portee  de  faire 
valoir  leurs  etudes  particulieres.  La  question  s'addressoit  a 
un  seul,  et  tous  s'empressoient  d'en  chercher  la  reponse.  Tous 
etoient  en  haleine,  parce  que  la  question  suivante  pouvoit 
s'addresser  a  eux.  La  reponse  etoit-elle  difficile  ?  la  tournure 
meme  de  la  question  servoit  a  y  conduire,  et  1'indiquoit  aux 
esprit  attentifs,  en  leur  laissant  tout  le  plaisir  de  la  recherche, 
et  rhonneur  de  la  solution.  L'objection  la  moins  solide,  celle 
meme  qui  annon9oit  ou  le  peu  d'avancement,  ou  1'oubli  du 
principe,  etoit  ecoutee  et  repondue  avec  bonte." 

It  is  very  interesting  to  note  that  Pothier,  in  the  testing  of  his 
scholars,  revived  the  medieval  method  of  public  disputations, 
a  method  that  had  only  then  recently  died  out  in  England,  but 
which  in  France  had  long  given  place  to  the  modern  system  of 
formal  examinations.  The  method  of  disputation,  in  which  the 
victor  was  awarded  a  gold  medal,  aroused  every  faculty  in  the 
students  (for  questions  as  well  as  answers  were  considered  by 
the  judges),  and,  as  M.  le  Trosne  says,  "  None  would  enter  the 
lists  if  not  assured,  if  not  of  victory,  at  least  of  honour."  More- 
over, it  created  public  interest  in  the  University  and  in  the  law 
school  of  the  University.  Pothier  took  up  this  work  from  the 
sheer  love  of  teaching.  His  emoluments  he  divided  between  the 
poor  and  his  pupils  during  the  five-and-twenty  years  that  he 
held  the  professorship.  Alongside  of  his  professorial  and  his 
judicial  work  Pothier,  on  the  completion  of  his  work  on  Roman 

position  of  the  Prolegomena  (the  material  was  supplied  by  Pothier),  who 
had  a  large  share  in  the  commentary  on  the  law  of  the  twelve  tables, 
and  revised,  with  critical  exactitude,  the  entire  work.  Pothier  was  also  a 
good  deal  influenced  by  Rousseau,  the  professor  of  law  at  Paris  and  his 
intimate  friend. 

1  Guyot  edited  Pothier's  postlmmous  works  in  1777. 


POTHIER  467 

law,  turned  with  all  the  zest  of  a  lover  to  that  object  of  a  true 
lawyer's  passion — the  law  of  his  own  country.  For  years  he  had 
prepared  from  tune  to  time  for  his  own  use  treatises  or  hand- 
books of  French  law.  He  needed  such  works  in  the  daily  round 
of  his  life.  But  now  that  the  great  foundation  was  laid,  now 
that  Roman  law  had  yielded  up  to  his  capacious  mind  principles 
and  equities,  he  turned  to  the  law  of  his  own  land  with  the 
determination  to  do  what  had  never  yet  been  attempted.  As  long 
before  as  1740  he  had  published  conjointly  with  M.  de  la  Jannes 
and  M.  Jouffe,  an  edition  of  the  Coutume  d"  Orleans,  and  now,  on  a 
demand  for  a  second  edition,  he  produced  a  work  of  a  singularly 
valuable  kind  ;  for  at  the  head  of  each  custom  he  added  a  little 
treatise  on  the  subject  of  the  custom,  thus  drafting  schemes  or 
designs  for  the  series  of  treatises  that  he  subsequently  produced. 
This  treatise  completed,  he  turned  to  the  work  for  which  he  is  most 
famous — his  famous  Traite  des  Obligations,  which  he  published 
in  1761  in  two  volumes,  as  the  foundation  of  other  projected 
treatises,  and  which  was,  in  fact,  the  first  fruit  of  his  unique 
knowledge  of  Roman  law.  Of  the  classical  treatise  it  will  be 
necessary  to  give  some  summary,  but  before  doing  so  it  is  de- 
sirable to  refer  to  the  series  of  works  that  sprang,  so  to  speak, 
out  of  it.  In  1762  he  issued  his  Traite  du  Control  de  Vente  and 
his  Traite  des  Retraits.  This  was  followed  in  1763  by  Le  Traite 
du  Contrat  de  Constitution  de  Rente  and  Le  Traite  du  Contrat 
de  Change ;  in  1764  by  Le  Traite  du  Contrat  de  Louage  and  Le 
Traite  du  Contrat  de  Bail  a  Rente.  In  1765  Pothier  supplemented 
his  Traite  du  Contrat  de  Louage,  with  a  treatise  on  Maritime  Hire 
(Louage  Maritime],  chiefly  on  charter  parties,  damage  (avaries), 
and  the  hire  of  seamen,  and  also  issued  his  Traite  du  Contrat  de 
Societe  and  his  Traite  des  Cheptels  (the  leasing  of  cattle).  In  1676 
and  1767  he  published  the  treatises  on  the  contracts  de  Bien- 
faisance — i.e.,  Le  Traite  du  Pret  a  Usage  et  du  Precaire  (forming 
one  treatise) ;  du  control  de  Pret  de  Consomption  (a  second  treat- 
ise) ;  du  contrat  de  Depot  (a  third  treatise) ;  du  contrat  de  Mandat, 
with  the  quasi-contract  Negotiorum  Gestorum  (a  fourth  treatise). 
The  same  years  saw  the  treatises  Du  Contrat  de  Nantissement 
(pledge),  Des  Controls  Aleatoires  (contingent  contracts),  Des 
Controls  d 'Assurance,  du  Pret  a  la  grosse  Aventure  (bottomry 
bonds),  Du  Jeu  (gaming  contracts).  In  1768  Pothier  issued 
his  Traite  du  Contrat  de  Mariage ;  in  1769  Le  Traite  de  la 
Commumaute.  These  two  great  treatises  on  the  marriage  con- 


468  POTHIEB 

tract  and  the  law  of  property  and  marriage  together  come  to 
about  800  folio  pages — the  work  of  a  lifetime  in  itself.  With 
these  treatises  Pothier  concludes  his  labours  on  the  law  of  obliga- 
tions. He  has,  he  tells  us,  reserved  the  good  wine  to  the  last. 

"  Nous  avons  cru  ne  pouvoir  mieux  terminer  notre  Traite  des 
Obligations,  et  des  differens  contrats  et  quasi-contrats  d'oii 
elles  naissent,  que  par  un  Traite  du  Contrat  de  Mariage,  ce 
contrat  etant  le  plus  excellent  et  le  plus  ancien  de  tous  les 
contrats.  II  est  le  plus  excellent,  a  ne  le  considerer  meme  que 
dans  1'ordre  civil,  parce  que  c'est  celui  qui  interesse  le  plus  la 
societe  civile.  II  est  le  plus  ancien,  car  c'est  le  premier  contrat 
qui  ait  ete  fait  entre  les  homines.  Aussitot  que  Dieu  eut  forme 
Eve  d'une  des  cotes  d'Adam,  et  qu'il  la  lui  eut  presentee,  nos 
deux  premiers  parens  firent  ensemble  un  contrat  de  manage ; 
Adam  prit  Eve  pour  son  epouse,  en  lui  disant :  Hoc  nunc,  os  ex 
ossibus  meis,  et  caro  de  carne  mea  .  .  .  et  erunt  duo  in  came, 
una  :  et  Eve  prit  reciproquement  Adam  pour  son  epoux." 

This  is  indeed  a  characteristic  passage,  setting  forth  Pothier's 
profound  respect  for  the  institution  that  underlies  all  civilized 
society,  coupled  with  his  entirely  reverent  acceptance  of  the 
text  of  the  Old  Testament  (for  the  Post-Royalists  were  not 
modernists  in  our  limited  textual  sense),  and  his  passion  for 
detecting  the  binding  operation  of  law  even  in  the  spontaneous 
utterances  of  love. 

In  1770  he  issued  the  treatise  Du  Douaire  (dower),  followed 
in  1771  by  its  appendix  Du  Droit  d1  Habitation  (the  right  of 
the  widow  to  occupy  the  former  marital  residence  for  life 
or  widowhood),  and  Le  Traite  des  Donations  entre  Mari  et 
Femme,  with  an  appendix  discussing  Article  68  of  the  Custom 
of  Orleans,  by  which  either  spouse  could  leave  to  the  other  by  a 
mutual  gift,  confirmed  by  a  mutual  will,  practically  a  complete 
interest  in  the  other  spouse's  entire  estate  (subject  to  debts  and 
maintenance  of  infants).  The  discussion  is  full  of  interest.  These 
essays  complete  the  monumental  treatises  on  marriage  and  the 
law  of  property  arising  out  of  marriage. 

In  1771  and  1772  came  the  last  treatises,  those  which  reconsider 
the  whole  Law  of  Possession  :  Le  Traite  du  Droit  de  Domaine  de 
Propriete  ;  Le  Traite  de  la  Possession  ;  Le  Traite  de  la  Prescription 
qui  resulte  de  la  Possession. 

The  Traite  du  Droit  de  Domaine  de  Propriete  sets  forth  two 
kinds  of  rights,  the  jus  in  re  and  the  jus  ad  rem,  the  first  being 
the  rights  that  we  have  in  the  thing  itself,  the  second  being  the 


POTHIER  469 

rights  we  have  against  the  person  who  has  contracted  with 
us  an  obligation  to  give  us  the  thing.  The  jus  ad  rem  is  the 
subject  of  the  law  of  obligations  ;  the  jus  in  re  is  the  subject  of 
the  law  of  possession,  and  of  feudal  and  censual  rights,  and  rights 
of  mortgage.  Pothier  supplements  this  elaborate  treatise  with 
a  treatise  on  Possession — and  this,  his  last  published  work, 
should  be  compared  with  Savigny's  first  published  work,  which 
is  so  famous,  dealing  with  the  same  theme.  Possession, 
Pothier  tells  us,  is  one  of  the  ways  of  acquiring  dominion  : 
a  treatise  of  possession  necessarily  follows  on  a  treatise  as 
to  dominion  over  property.  Pothier  deals  first  with  the  nature 
of  possession,  and  then  discusses  the  different  kinds  of 
possession,  the  things  susceptible  of  possession,  and  of  quasi- 
possession,  the  manner  of  acquiring  (and  of  losing)  possession, 
and  finally  the  rights  of  action  springing  from  possession. 
Possession  itself  is  "la  detention  d'une  chose  corporelle  que 
nous  tenons  en  notre  puissance,  ou  par  nous-memes,  ou  par 
quelqu'un  qui  la  tient  pour  nous  et  en  notre  nom."  It  is  a  fact 
rather  than  a  right,  but  it  gives  rise  to  rights  in  the  things  pos- 
sessed— namely,  a  reputation  as  owner  (proprietaire)  till  the 
true  owner  appears,  and  the  right  of  action  to  obtain  possession 
and  recover  possession.  This  is  the  case  whether  the  title  be 
just  or  unjust ;  but  if  the  title  be  just  and  of  good  faith,  dominion 
also  foUows  after  a  lapse  of  time  by  virtue  of  prescription. 

There  are  two  kinds  of  possession,  civil  and  natural — the  former 
springing  from  a  good  title,  the  latter  from  no  title,  or  a  bad 
title,  or  a  nul  title,  or  a  good  title  that  has  not  inherent  in  it  any 
right  of  transfer.  This  doctrine  should  be  compared  with  that 
of  Savigny.  It  will  be  remembered  that  Savigny  dwelt  on  the 
fact  that  modern  law  had  extended  the  doctrine  of  possession 
from  property  and  jura  in  re  to  every  possible  right,  including 
rights  of  personal  status  and  obligations.  The  comparison  be- 
tween the  two  works  cannot  be  carried  out  here. 

Pothier  died  on  March  2,  1772,  after  a  brief  illness  from  fever. 
The  brief  summary  given  above  of  his  works  must  suffice  to 
supply  some  idea  of  his  labours,  but  the  four  great  volumes  in 
which  they  are  contained  in  no  sense  exhausts  his  legacy  to  the 
world  of  law.  In  1777  his  posthumous  works  were  issued  in  three 
volumes,  and  these  are  further  tribute  to  the  enormous  industry 
of  the  great  jurist.  The  work  was  edited  by  his  colleague, 
M.  Guyot,  the  well-known  lawyer  and  jurist  of  Orleans.  That 


470  POTHIER 

an  authorized  edition  was  necessary,  was  shown  by  the  fact 
that  a  clandestine  or  pirated  and  imperfect  edition  of  Traite  des 
Fiefs  was  issued  at  Orleans  (apparently  from  a  student's  copy 
of  the  manuscript)  before  the  official  edition  appeared.  There 
was  a  real  demand  for  any  works  from  the  pen,  to  quote 
M.  Guyot's  prefatory  letters  to  Monseigneur  de  Miromesnil 
(Garde  des  Sceaux  de  France) :  "  D'un  Jurisconsulte  qui  a 
honore  notre  Province,  autant  par  ses  Ecrits  immortels,  que  par 
ses  travaux  assidus  dans  1'exercice  des  fonctions  de  la  Magis- 
trature  et  1'enseignement  public  du  Droit." 

The  first  volume  contained  the  Traite  des  Fiefs,  an  elaborate 
treatise  of  great  historical  value,  that  gave  the  exact  legal  position 
as  to  ownership  of  land  on  the  eve  of  the  French  Revolution. 
Pothier  tells  us  that  "  Les  biens  immeubles  se  divisent,  par 
rapport  a  la  maniere  dont  de  font  tenus,  en  Feodaux,  Censuels, 
et  AUodiaux."  He  goes  on  to  distinguish  those  classes  of  land 
with  a  clearness  not  to  be  found  in  the  best  modern  French  dic- 
tionary :  "Les  immeubles  feodaux  ou  Fiefs,  sont  ceux  qui  sont 
tenus  a  la  charge  de  la  foi  et  hommage.  Les  Censuels  sont  ceux 
qui  sont  tenus  a  la  charge  d'une  redevance  pecunaire,  en  recon- 
noissance  de  la  Seigneurie  du  Seigneur  de  qui  ils  font  tenus.  Les 
Biens  allodiaux  ou  franc-alleux  sont  ceux  qui  ne  sont  d'aucun 
Seigneur." 

This  work  discusses  fiefs.  The  Traite  des  Cens,  which  follows 
it,  deals  with  a  certain  class  of  charges  on  land  : 

"  Le  contrat  de  bail  a  cens  est  un  contrat  par  lequel  le  pro- 
prietaire  d'un  heritage  ou  d'un  autre  droit  immobilier  1'aliene, 
sous  la  reserve  qu'il  fait  de  la  seigneurie  directe,  et  d'une 
redevance  annuelle  en  argent  ou  en  fruits,  qui  doit  lui  etre 
payee  par  le  preneur  ou  ses  successeurs  en  reconnoissance  de 
ladite  seigneurie.  Cette  redevance  annuelle  s'appelle  cens. 
L'heritage  charge  de  cette  redevance,  a  la  charge  de  laquelle 
il  a  6te  concede,  est  ce  qu'on  appelle  un  heritage  censuel.  Le 
possesseur  de  cet  heritage  s'appelle  censitaire.  Celui  a  qui  est 
due  cette  redevance  recognitive  de  la  seigneurie  directe  qui  est 
par-devers  lui,  est  ce  qu'on  appelle  le  Seigneur  de  Censive." 

The  distinction  between  the  Cens  and  the  Rente  fonciere  is  care- 
fully brought  out ;  and  here  we  see  the  cleavage  between  the  old 
law  and  the  new.  The  Rente  fonciere  is  never  seigneurial,  and  is 
therefore  subject  to  the  law  of  prescription ;  while  the  Cens  is 
subject  to  no  such  law.  Indeed,  the  Cens  really  enabled  the 
owners  of  free  or  lordless  land  to  grasp  a  lordship,  for  when  they 


POTHIER  471 

granted  the  Gens  they  reserved  the  lordship.  The  next  treatise 
deals  with  the  feudal  or  seigneurial  right  or  rent  known  as  Le 
Droit  de  Champart.  This  is  followed  by  Le  Traite  de  la  Garde- 
noble  et  Bourgeoise  ;  Le,  Traite  du  Preciput  (preferential  legacy) 
legal  des  Nobles  (relating  to  a  special  aspect  of  the  law  of  pro- 
perty in  marriage  in  the  case  of  the  noble  class) ;  Le  Traite  de 
VHypoiheque ;  Le  Traite  des  Substitutions,  a  derivative  of  the 
Roman  law  of  wills.  The  second  volume  (which,  as  does  the  third, 
again  warns  the  reader  against  imperfect  pirate  editions  of  works 
by  Pothier,  such  as  the  1774  edition  of  the  Procedure  Civile)  opens 
with  the  lengthy  Traite  des  Successions,  and  passes  on  to  the  Traite 
des  Propres  ( "1'esprit  de  notre  Droit  Coutumier  est  que  chacun  con- 
serve a  sa  famille  les  biens  qui  lui  en  sont  venus.  De  la  est  venue 
la  distinction  entre  les  Acquets  et  Propres  "),  Traite  des  Donations 
testamentaires,  Traite  des  Donations  entre  Vifs,  Traite  des  Personnes 
et  des  Choses.  This  last  work  opens  with  an  invaluable  analysis 
of  the  classes  that  made  up  French  society  immediately  before 
the  Revolution.  He  summarizes  the  privileges  of  the  noblesse 
under  eleven  heads.  The  third  head  is  the  most  notable  :  "Ils 
sont  exempts  de  taille ,  et  de  plusieurs  autres  cottisations,  connues 
sous  le  nom  de  Taillons,  de  Crues  d 'Aides,  et  de  Subsides,  aux- 
quels  les  roturiers  sont  sujets  ;  ils  ont  meme  le  droit  de  faire 
valoir  quatre  charrues,  sans  pouvoir  y  etre  imposes."  In  return 
they  are  destined  for  the  military  service,  and  have  some  small 
special  burdens.  When  Pothier  deals  with  serfs  he  is  careful 
to  point  out  that  they  are  not  slaves  :  a  negro  permanently 
resident  in  France  becomes  free.  The  serfs  of  the  Royal  Pro- 
vinces, such  as  Burgundy,  have  a  civil  status,  are  citizens  : 
"  Ils  ne  font  pas  in  dominio  du  Seigneur  auquel  ils  appartien- 
nent  et  ne  sont  appelles  Serfs  qu'a  cause  de  certains  devoirs 
tres-onereux,  dont  ils  sont  tenus  envers  lui."  There  were  three 
classes  of  serfs  :  the  serf  born,  who  must  remain  a  serf  ;  the 
serf  in  respect  of  a  heritage,  who  can  become  free  by  abandoning 
the  heritage  ;  and  les  serfs  de  meubles,  who  can  only  achieve  their 
freedom  at  the  cost  of  all  their  personal  estate.  Les  serfs  de 
corps  cannot  escape  from  their  burdens  "  tels  que  la  taille  que 
leur  Seigneur  a  droit  d'exiger,  le  droit  qu'a  leur  Seigneur  de 
recueillir  apres  leur  deces  tours  les  biens  qu'ils  delaisseront." 
The  taille,  the  corvee,  the  inability  to  marry  out  of  the  serf  class, 
and  the  limitation  on  testamentary  disposition,  were  certainly 
negative  forces  moving  towards  revolution.  The  last  volume 


472  POTHIER 

contains  Traite  de  la  Procedure  civile  and  Traite  de  la  Procedure 
criminelle,  the  value  of  which  in  tracing  the  history  of  French  law 
can  hardly  be  overestimated.  This  brief  sketch  of  the  contents  of 
these  volumes  give  some  slight  idea  of  the  vast  volume  of  Pothier's 
work.  It  is  desirable,  however,  to  make  some  fuller  reference 
to  the  famous  Traite  des  Obligations,  since  that  work  is  in  one 
sense  Pothier's  chief  contribution  to  the  science  of  law  in  general 
— a  work  that  stands  out  as  something  different  in  kind  to,  and 
scarcely  less  monumental  than,  his  presentation  of  the  entire 
Corpus  of  French  law  as  conceived  and  practised  in  his  age. 
The  work  falls  into  four  parts,  as  follows  : 

I.  Premiere  Partie :  De  ce  qui  appartient  a  Fessence  des 

obligations  ;  et  de  leurs  effets. 
II.  Seconde  Partie  :  Des  differentes  especes  d 'obligations. 

III.  Troisieme  Partie :   Des   manieres   dont   s'eteignent   les 

obligations,  et  des  differentes  fins  de  non-recevoir,  ou 
prescriptions  centre  les  creances. 

IV.  Quatrieme  Partie  :  De  la  preuve  tant  des  obligations  que 

de  leurs  paiemens. 

The  work  runs  to  459  folio  pages,  and  is,  of  course,  of  great 
elaboration. 

Part  I.  falls  into  two  chapters.  In  the  first  chapter  Pothier 
discusses  what  belongs  to  the  essence  of  obligations,  and  in  the 
second  chapter  the  effect  of  obligations.  It  is,  he  says,  of  the 
essence  of  an  obligation  that  there  should  be  a  cause  from  which 
the  obligation  springs  ;  that  there  should  be  persons  between 
the  obligation  is  contracted ;  that  there  should  be  a  thing  that 
is  the  object  of  the  obligation.  The  causes  of  obligations  are 
contracts,  quasi-contracts,  delicts,  and  quasi-delicts,  and  some- 
times the  mere  operation  of  law  or  equity.  It  is  of  profound 
interest  to  see  Pothier  fall  back  on  Natural  Law  as  the  cause  of 
obligations.  He  says  :  "  123.  La  Loi  naturelle  est  la  cause  au 
moins  mediate  de  toutes  les  obligations  :  car  si  les  contrats, 
delits  et  quasi-delits,  produisent  des  obligations,  c'est  primitive- 
ment,  parce  que  le  Loi  naturelle  ordonne  que  chacun  tienne  ce 
qu'il  a  promis,  et  qu'il  repare  le  tort  qu'il  a  commis  par  sa 
faute."  Pothier  first  deals  with  contracts  :  a  contract  is  a  pact 
or  convention  to  form  an  engagement.  He  refuses  to  adopt  the 
Roman  basis  of  contracts,  "n'etant  pas  fond^s  sur  le  droit 
naturel."  He  proceeds  to  define  a  contract  as  "  une  convention 


POTHIER  473 

par  laquelle  les  deux  parties  reciproquement,  ou  seulement  1'une 
des  deux,  promettent  et  s'engagent  envers  1'autre  a  lui  dormer 
quelque  chose,  ou  a  faire  ou  a  ne  pas  faire  quelque  chose."  The 
parties  must  promise  and  engage  :  for  a  promise  may  be  merely 
"  une  obligation  imparfaite  "  (a  famous  phrase).  This  is  not  the 
place  in  which  to  contrast  the  various  views  as  to  the  nature  of 
contract  held  by  various  famous  jurists,  but  it  is  perhaps  worth 
noticing  that  both  Savigny  and  Austin  (with  his  distinction 
between  a  contract  and  a  pollicitation  taken  apparently  direct 
from  Pothier)  owe  much  to  Pothier's  analysis.  The  English 
doctrine  of  Consideration  is  no  doubt  implied  in  Pothier's  defini- 
tion, for  in  the  absence  of  what  we.  should  call  consideration, 
Pothier  would  find  that  the  obligation  was  imperfect,  and  that 
therefore  there  was  no  contract.  But  in  English  law  as  late  as 
1765  (see  Sir  William  Anson  on  Contract,  twelfth  edition,  p.  90  ; 
Pillans  v.  Van  Mierop,  3  Burr.  1663)  the  doctrine  of  consideration 
was  in  the  balance,  and  it  was  not  until  1 778,  after  Pothier's  death, 
that  in  the  case  of  Eann  v.  Hughes  (7  T.R.,  350  [n])  it  was  finally 
laid  down  that  an  agreement  without  sufficient  consideration 
was  midum  pactum.  Without  this  specific  doctrine  Pothier 
apparently  drew  from  the  law  of  Nature  a  doctrine  of  contract 
that  rejects  as  non-contractual  agreements  that  in  fact  do  not 
exhibit  what  English  lawyers  call  consideration.  But  Pothier 
says  that  each  contract  must  be  considered  by  itself  in  order  to 
determine  the  elements  that  are  the  essence  of  the  contract. 
Pothier  next  passes  to  the  other  causes  of  obligation,  to  the  persons 
between  whom  obligations  can  arise,  to  the  things  that  can  be 
the  object  and  subject-matter  of  obligations.  Lastly,  in  this 
first  part,  he  discusses  the  effects  of  obligations. 

In  the  Second  Part  he  opens  with  an  analysis  of  the  different 
classes  of  obligations,  and  in  the  second  chapter  distinguishes 
between  obligations  civiles  and  obligations  naturdles.  He  says 
that  French  law,  refusing  to  follow  Roman  law  in  its  distinction 
between  contracts  and  simple  pacts,  "ces  obligations  naturelles 
du  Droit  Remain  sont,  dans  notre  Droit,  de  veritables  obligations 
civiles."  But  these  simple  pacts,  which  are  unenforceable  be- 
cause the  law  denies  the  right  of  action,  or  one  of  the  parties 
incapable  of  contracting,  must  not  be  confounded  with  the 
"  imperfect  obligations  "  which  he  has  already  excluded  from  the 
realm  of  true  obligations — obligations  which  create  no  manner  of 
right.  In  other  words,  if  the  consideration  exists,  the  obliga- 


474  POTH1ER 

tion  exists,  even  if  for  some  technical  reason  the  obligation  can- 
not be  enforced  in  the  courts.  In  the  next  chapter  Pothier 
discusses  the  different  ways  in  which  obligations  can  be  con- 
tracted. In  the  fourth  chapter  he  considers  particular  kinds  of 
obligations  with  reference  to  the  subject-matter  of  the  obliga- 
tion. In  the  fifth  chapter  he  discusses  penal  obligations  ;  in  the 
sixth  accessory  obligations,  such  as  the  obligation  of  a  guarantor. 

The  Third  Part  deals  with  the  extinction  of  obligations  (and  the 
running  of  prescription  against  debt)  in  eight  important  chapters. 
A  creditor  must  bring  his  action  within  thirty  years.  This  doc- 
trine, he  says,  springs  from  the  presumption  that  the  debt  would 
be  paid  within  that  time,  and  also  to  relieve  debtors  from  the 
duty  of  keeping  receipts  for  ever.  The  prescriptive  period  in 
some  Customs  (cf.  Orleans)  in  the  case  of  a  debtor  bound  by 
notarial  act  was  (following  the  Roman  law)  forty  years.  On  the 
other  hand,  small  shopkeepers  had  to  demand  payment  of  their 
accounts  within  six  months,  and  merchants  within  a  year ;  but 
these  rules  did  not  apply  where  the  debt  could  be  proved  by 
evidence  in  writing.  The  last  part  deals  with  the  question  of  the 
proof  of  the  existence  of  obligations.  The  creditor  has  to  prove 
the  debt,  and  then  it  lies  on  the  debtor  to  prove,  if  he  can,  that 
it  is  already  discharged.  There  are,  Pothier  says,  two  kinds  of 
proof  :  literal  proof,  arising  from  acts  or  written  words  ;  and 
proof  arising  from  evidence.  The  place  of  admissions,  presump- 
tions, and  oaths  in  the  realm  of  proof  are  also  considered  at 
length. 

To  those  who  are  interested  in  the  personality  of  Pothier  we 
may  recommend  a  perusal  of  the  general  observations  that  con- 
clude this  great  work.  He  uses  this  chapter  very  largely  for  the 
purpose  of  discussing  the  views  of  a  certain  M.  le  Brun  (Avocat 
au  Parlement  de  Paris)  as  to  acts  of  default  in  relation  to  con- 
tracts. Pothier  adopted  the  views  of  all  the  interpreters  of 
Roman  law  and  the  jurists  up  to  his  time — the  views  of  Accursus, 
Alciati;  Cujas,  Duaren,  d'Avezan,  Vinnius,  Heineccius — that  there 
are  three  degrees  of  default :  lata  cvlpa  (namely,  not  applying 
to  the  affairs  of  others  the  degree  of  care  that  the  most  careless 
and  stupid  person  would  devote  to  his  own  affairs) ;  levis  culpa 
(not  using  the  care  which  an  ordinary  man  would  devote  to  his 
own  affairs) ;  and  levissima  culpa  (not  using  the  care  which  the 
most  attentive  person  would  devote  to  his  own  affairs).  Pothier 
proceeds  to  ascertain  the  principles  that  determine  when  one  or 


POTHIER  475 

other  of  these  degrees  of  carefulness  is  necessary.  The  first  only 
is  necessary  (save  in  certain  cases)  if  the  debt  is  solely  for  the 
benefit  of  the  creditor ;  where  the  interests  of  the  parties  to  the 
contract  or  quasi-contract  are  reciprocal,  the  second  class  of 
carefulness  is  necessary  ;  the  third  class  is  necessary  in  contracts 
when  the  act  done  is  for  the  sole  benefit  of  the  party  in  possession 
the  thing  which  is  the  object  of  the  contract — as  in  the  contract 
of  commodatum.  M.  Le  Brun  roundly  denied  the  doctrine  of 
three  degrees  of  carefulness.  There  are  only  two  kinds  of 
diligence  :  the  diligence  which  a  man  of  business  is  accustomed 
to  show ;  the  diligence  that  a  man  usually  shows  in  his  own 
affairs.  It  depends  on  the  contract  which  kind  of  diligence  is 
necessary.  Pothier  quietly  joins  issue  with  M.  Le  Brun  ("  Je  suis 
demeure  attache  a  1'ancienne  doctrine  ").  and  is  full  of  apologies 
for  disagreeing  with  his  junior,  and  ends  up  with  this  charming 
sentence:  "Au  reste,  quoique  PAuteur  n'ait  pu  me  persuader 
d'embrasser  son  systeme  (ce  qu'il  doit  pardonner  a  un  vieillard  a 
qui  il  n'est  pas  facile  de  se  departir  de  ses  anciennes  idees);  je  dois 
cette  justice  a  sa  Dissertation,  qu'elle  est  tres  ingenieuse  et  tres 
savante,  et  qu'elle  merite  d'etre  lue  par  tous  ceux  qui  ont  quelque 
gout  pour  la  jurisprudence." 

Space  is  not  available  here  for  dealing  in  any  way  with  the 
series  of  treatises  on  special  contracts  that  supplement  the  treatise 
on  obligations  or  the  vast  group  of  treatises  on  the  contract  of 
marriage.  This  latter  work  has  a  peculiar  value,  as  it  deals  at 
length  with  the  question  of  marriage  and  divorce  in  the  age  when 
the  new  law  was  becoming  effective.  Pothier  points  out  that  no 
divorce  can  take  place  in  France,  but  he  adds  that  "  Dans  les 
Etats  Protestans,  le  divorce  est  encore  permis  pour  de  certaines 
causes,  et  en  observant  certaines  formalites,"  and  refers  the 
reader  to  the  Code  of  Frederick  of  Prussia.  The  treatises  give 
us  a  detailed  picture  of  social  life  in  France  in  the  mid-eighteenth 
century,  laying  bare  as  Pothier  does,  with  the  pen  of  a  practical 
lawyer,  the  whole  of  the  marital  regime  that  was  reflected  in 
every  detail  by  the  elaborate  law  governing  the  contract  of 
marriage  and  the  multitudinous  swarms  of  property  rights 
springing  out  of  that  contract  or  out  of  the  preliminary  contract 
of  betrothal. 

One  word  of  summary.  In  Pothier  we  listen  to  a  lawyer  who 
saw  that  there  were  three  aspects  of  law  that  must  enter  the  legal 
mind  :  the  great  bases  which  he  found  in  Roman  law  partly,  but 


476 


POTHIER 


also  largely  in  the  Law  of  Nature ;  the  great  realm  of  practice ; 
the  great  and  varying  systems  of  customary  law.  He  laboured 
like  a  Titan  to  bring  together  into  one  perfect  whole  these  aspects 
of  law,  and  performed  a  task  of  inconceivable  labour  and  diffi- 
culty when  he  produced  what  was  practically  a  code  of  French 
substantive  and  procedural  law.  No  one  but  a  great  thinker 
and  great  jurist  and  a  great  practical  lawyer  could  have  done 
this  :  and  he  was  all  these  things.  But  he  was  something  more 
than  this  :  he  was  a  great  man  in  whom  character  shone  forth 
not  only  in  his  work,  but  in  his  life.  His  life  was  one  of 
complete  orderliness,  entirely  pervaded  by  faith,  hope,  and 
charity.  He  saw  that  the  law  which  must  govern  society  must 
also  govern  the  individual,  and  he  found,  as  Milton  found,  that 
the  inner  law  of  spiritual  liberty  was  the  necessary  supplement 
of  the  outer  law  that  governs  the  interaction  of  men  and  nations. 


£MEBICH  DE  VATTEL 

THE  late  Mr.  Joseph  Chitty  in  1834,  after  his  relinquishment  of 
an  enormous  practice  at  the  Bar,  employed  part  of  his  unfamiliar 
leisure  in  re-editing  for  a  world  that  was  fast  forgetting  the 
terribleness  of  war  the  English  anonymous  edition  of  VatteFs 
Le  Droit  des  Gens,  issued  in  1760  and  amply  revised  in  1797, 
possibly  by  William  Cobbett,  who  in  1795  had  translated  Marten's 
Law  of  Nations.1  Mr.  Chitty's  object  was  the  object  of  every  self- 
respecting  lawyer  :  he  desired  to  bring  Vattel's  work  up  to  date, 
with  special  reference  to  the  legal  decisions  that  had  sprung  out 
of  the  Napoleonic  and  American  wars.  '  But  this  eminent  lawyer 
in  his  retirement  did  not  only  look  upon  Vattel's  honoured  work 
as  a  book  to  be  "noted  up."  The  moral  aspect  of  his  labours 
particularly  appealed  to  the  most  technical  pleader  that  the 
English  Bar  has  produced.  He  affirms  in  his  preface,  "  without 
the  hazard  of  contradiction,  that  every  one  who  has  attentively 
read  this  work,  will  admit  that  he  has  acquired  a  knowledge  of 
superior  sentiments,  and  more  important  information  than  he 
ever  derived  from  any  other  work."  Mr.  Chitty  indeed  regarded 
Vattel's  work  not  only  as  a  book  for  sovereigns  and  statesmen  but 
as  a  moral  guide  for  every  educated  person.  He  says  : 

"It  has  been  generally  supposed  that  it  is  only  adapted  for 
the  study  of  sovereigns  and  statesmen,  and  in  that  view  certainly 
the  author's  excellent  preface  points  out  its  pre-eminent  impor- 
tance. But  it  is  of  infinitely  more  extended  utility.  It  con- 

1  Mr.  Chitty  had  already  in  1812  published  a  work  (dedicated  to  Lord 
Erskine)  entitled  A  Practical  Treatise  on  the  Law  of  Nations,  relative  to  the 
Legal  Effect  of  War  on  the  Commerce  of  Belligerents  and  Neutrals,  and  on  Orders 
in  Council  and  Licenses.  It  is  a  work  of  importance  in  the  history  of  inter- 
national law.  Mr.  Chitty's  edition  of  Vattel  is  not  included  in  the  list  of  his 
works  published  in  the  Dictionary  of  National  Biography.  I  may  add  hero 
that  I  nave  used  the  copy  of  the  1760£English  version  of  Le  Droit  des  Gens 
in  the  Cambridge  University  Library.  Lincoln's  Inn  Library  possesses  a 
copy  (which  I  have  also  used  for  the  purposes  of  this  paper)  of  the  Questions 
de  Droit  Naturel,  et  Observations  sur  le  Traite  du  Droit  de  la  Natur  de  M.  le 
Baron  de  Wolfot  1762.  The  work  is  rare. 

477 


478  VATTEL 

tains  a  practical  collection  of  ethics,  principles,  and  rules  of  con- 
duct to  be  observed  and  pursued,  as  well  by  private  individuals 
as  by  states,  and  these  of  the  utmost  practical  importance  to  the 
well-being,  happiness,  and  ultimate  and  permanent  advantage 
and  benefit  of  all  mankind  ;  and  therefore  ought  to  be  studied 
by  every  gentleman  of  liberal  education,  and  by  youth,  in  whom 
the  best  moral  principles  should  be  inculcated.  The  work 
should  be  familiar  in  the  Universities  and  in  every  class  above 
the  inferior  ranks  of  society." 

I  have  quoted  Mr.  Chitty's  enthusiastic  and  profusely  italicized 
dedication  of  the  work  as  this,  in  a  sense,  prepares  the  way  for  an 
analysis  of  it.  It  is  true  that  this  eminent  lawyer's  desires  failed. 
Vattel  is  not  perused  with  eagerness  by  every  gentleman  of  liberal 
education  or  even  by  youth,  while  it  is  to  be  doubted  if  his  master- 
piece is  familiar  in  any  English  University  or  in  any  English  grade 
of  population.  It  may  well  be  that  women  and  the  inferior  ranks 
of  society,  the  classes  so  thoughtfully  excused  by  Mr.  Chitty, 
know  as  much  about  the  genial  disciple  of  Christian  von  Wolff  as 
is  known  by  other  general  or  special  readers.  Let  us  see  what 
a  new  dedication,  a  new  recommendation  at  large,  can  do  for  this 
famous  and  suave  Swiss  publicist. 

Vattel' s  Life. — Emerich  de  Vattel  was  the  son  of  David  de 
Vattel,  a  minister  of  the  Reformed  Church,  and  his  wife  Marie  de 
Montmollin,  daughter  of  a  Prussian  Treasury  official.  He  was  born 
at  Couvet  in  the  principality  of  Neufchatel  on  April  25,  1714.  He 
early  showed  a  taste  for  philosophic  subjects,  which,  in  common 
with  general  scholarship,  he  pursued  at  the  University  of  Bale.  He 
passed  on  to  the  University  of  Geneva,  where  he  finally  specialized 
upon  moral  philosophy.  He  became  an  ardent  student  of 
Leibnitz  and  Wolff  and  published  against  Crousaz  a  luminous 
summary  and  defence  of  the  Leibnitz  position.  This  he  dedicated 
to  King  Frederic  II.,  and  in  1742  he  followed  his  book  to  Berlin 
in  order  to  offer  his  services  to  the  King  whose  subject  he  was  by 
birth.  He  was  rebuffed  by  the  bluff  monarch  and  passed  on  to 
Dresden,  where  his  great  abilities  were  at  once  recognized  by 
the  Prime  Minister  of  Saxony,  Comte  de  Bruhl.  The  future  jurist 
was  placed  in  the  diplomatic  service,  where  his  unique  knowledge 
of  the  law  of  nations  and  of  the  history  of  treaties  enabled  him 
to  perform  services  of  considerable  moment.  It  was,  however, 
possible  for  him  to  spend  some  years  at  Neufchatel,  but  in  1746 
he  returned  to  Dresden,  when  the  King,  Augustus  III.,  appointed 
him  adviser  to  the  Embassy  and  sent  him  the  next  year  to  Berne 


VATTEL  479 

as  minister-plenipotentiary.  He  had  long  been  composing  his 
famous  treatise  Le  Droit  des  Gens,  and  it  was  at  Berne,  amidst 
pleasing  and  congenial  diplomatic  duties,  that  he  finished  this 
work.  He  also  during  this  period  wrote  widely  on  philosophy  and 
literature,  closely  investigated  the  whole  theory  of  natural  rights 
and,  as  a  relaxation,  published  some  poems.1 

In  1758  he  returned  to  Dresden,  was  made  a  Privy  Councillor, 
and  became  the  chief  adviser  of  the  Government  on  foreign  affairs. 
During  the  same  year  Le  Droit  des  Gens  was  printed  at  Neufchatel 
and  issued  with  the  name  London  on  the  title-page.  A  second 
edition  appeared  in  the  same  year  bearing  the  impress  of  Leyden. 
In  1762  he  issued  his  last  work  :  Questions  de  Droit  Naturel,  et 
Observations  sur  le  Traite  du  Droit  de  la  Natur  de  M.  le  Baron  de 
Wolf.2  This  book,  a  volume  of  great  importance,  was  written 
some  years  before  publication  and  consists  of  material  collected 
during  the  composition  of  Le  Droit  des  Gens.  We  have,  almost 
beyond  doubt,  further  examples  of  Vattel's  work  in  three  volumes 
(of  quite  the  first  importance  as  historical  sources)  published  at 
Frankfort  and  Leipsic  simultaneously  in  1757  and  1758.  These 
are  volumes  of  essays  par  "un  observateur  Hollandois."  The 
first  volume  (1757)  is  entitled  "  Memoir es  pour  servir  a  I'Histoire 
de  noire  terns,  par  1' Observateur  Hollandois,  Redigez  et  Augmentez 
par  M.  D.  V."  The  Lord  Acton  Library  Catalogue  suggests  that 
M.  D.  V.  is  "  Monsieur  de  Vattel,"  and  a  careful  consideration  of 
the  Preface  and  the  Notes  makes  this  certain.  Following  the 
preface  is  a  "Dissertation  sur  la  Raison  de  la  Guerre,"  by  the 
jurist  Strube,  which  was  almost  certainly  selected  for  insertion  by 
Vattel.  Vattel's  preface  is  a  wonderful  piece  of  writing  in  which 
he  advocates  the  formation  of  a  United  States  of  Europe,  in 
which  no  single  state  is  to  be  allowed  to  have  a  predominating 
power.  This  volume  consists  of  twenty  essays.  The  second 
volume  (bound  up,  in  Lord  Acton's  collection,  with 
the  first)  is  entitled  "  Memoires  pour  servir  a  VHistoire  de 
notre  terns,  par  rapport  a  la  Guerre  Anglo-Gallicane,  par  1'Obser- 

1  In  his  Observations  he  included  a  chapter  on  Tragedy  and  Comedy. 

2  A  Berne,  chez  la  Societe  Typographique  MDCCLXII.     I  think  that  the 
first  edition  of  Le  Droit  des  Gens  is  clearly  the  "  London  "edition,  for  it  has 
at  the  end  of  the  second  volume  a  list  of  Errata  which  in  the  "  Leyden  " 
edition  have  been  duly  corrected.     Through  the  kindness  of  Dr.  T.  A.  Walker, 
of  Peterhouse,  Cambridge,  I  have  been  able  to  compare  the  "  London  " 
edition  in  the  Peterhouse  Library  with  the  "  Leyden  "  edition  (two  volumes 
in  one)  in  Dr.  Walker's  fine  collection  of  works  on  the  Law  of  Nations.     He 
also  lent  me  Mr.  Chitty's  work  of  1812. 


480  VATTEL 

vateur  Hollandois,  Redigez  et  Augmentez  par  M.  D.  V."  (1757). 
The  third  volume  is  entitled  "  Memoires  pour  servir  a  VHistoire 
de  notre  terns,  ou  Von  deduit  historiquement  le  Droit  et  le  Fait  de  la 
Guerre  Sanglante  qui  trouble  actudlement  toute  I'Europe,  par 
1'Observateur  Hollandois,  Redigez  et  Augmentez  par  M.  D.  V." 
(1758).  From  1762  onwards  his  official  position  in  the  Court  of 
Saxony  and  the  new  interests  of  his  home  life  rendered  further 
juridical  work  impossible. 

It  was  not  until  late  in  life  that  he  married,  on  January  27, 
1764,  at  Dresden,  Mademoiselle  Marianne  de  Chesne,  a  member 
of  a  noble  French  family  which  had  settled  in  Saxony.  A  son 
was  born  on  January  31,  1765,  who  died  in  the  year  1827.  Vattel 
only  lived  for  about  .four  years  after  his  marriage.  The  strain 
of  his  official  work  proved  very  great,  and  in  1766  he  broke  down 
and  retired  for  rest  to  his  native  district,  Neufchatel.  In  the 
autumn,  with  characteristic  energy,  he  returned  to  Dresden  and 
resumed  his  duties.  In  the  following  year  he  broke  down  again 
and  once  more  sought  relief  at  Neufchatel.  But  it  was  too  late, 
and  he  died  on  December  28,  1767,  in  his  sixty-fourth  year. 
Vattel  left  behind  him  an  annotated  copy  of  the  first  edition  of 
Le  Droit  des  Gens,  and  an  edition  crudely  incorporating  these  notes 
was  issued  from  Neufchatel  in  1773.  The  volume,  in  the  hands 
of  a  critic,  is  invaluable  as  reflecting  the  jurist's  latest  views,  but 
it  was  issued  in  a  form  that  would  have  revolted  his  fine  sense  of 
style  and  order.  The  editor  of  the  edition  of  1775  indeed  com- 
ments in  terms  of  great  severity  on  this  edition,  and  declares  that 
it  "  devrait  etre  abandonne  a  1'epicier  comme  vraie  maculature." 

Vattel's  Works.— In  considering  Vattel's  works  it  will  probably 
be  found  convenient  to  make  some  detailed  examination  of  the 
Questions  de  Droit  Naturel,  et  Observations  sur  le  Traite  du  Droit  de 
la  Natur  de  M.  le  Baron  de  Wolf,  since  this  remarkable  volume 
contains  most  of  the  material  on  which  Le  Droit  des  Gens  was 
based  and  reveals  the  jurist  at  work  collecting  his  materials, 
sorting  his  ideas,  and  criticizing  the  intellectual  position  of  his 
great  master  Wolff.  The  work  shows  us  the  shrewd  utilitarianism 
that  was  the  salient  intellectual  characteristic  of  Vattel.  There 
never  was  a  shrewder  mind.  He  has  all  the  logical  clearness  and 
hardness  of  Bentham,  and  is  as  inelastic  as  that  eminent  thinker. 
He  is  in  point  of  time  and  thought  the  predecessor  of  Bentham, 
whose  doctrine  of  utility  appears  largely  written  throughout 
these  Observations.  Vattel  indeed  enunciates  the  aphorism  of  the 


VATTEL  481 

"  greatest  good  of  the  greatest  number,"  in  almost  similar  words. 
Yet,  reading  Vattel,  there  seems  a  great  gulf  fixed  between  him 
and  the  English  utilitarians.  His  doctrine  is  so  wrapped  up  in 
elegant  writing  and  precious  sentimentalism  that  the  bitter  piH 
is  swallowed  before  the  victim  has  any  knowledge  of  the  fact. 
That  was  not  Bentham's  way.  Bentham  had  to  be  translated 
into  French  by  Dumont,  and  re-translated  into  English  before 
the  great  British  public  would  have  anything  to  do  with  his 
philosophic  nostrums.  Vattel  at  once  found  his  audience,  and 
an  English  edition  appeared,  as  we  have  seen,  in  1760,  within  two 
years  of  the  publication  of  the  original  work.  A  German  edition 
(from  the  pen  of  J.  P.  Schulin)  also  appeared  in  1760,1  simul- 
taneously at  Frankfort  and  Leipsic,  thus  recalling  the  "  Acton  " 
volumes  referred  to  above.  He,  moreover,  appealed  directly  to 
the  religious  sense,  deliberately  limiting  his  utilitarianism  to  the 
natural  interrelations  of  men.  He  recognized,  as  standing  out 
above  and  enveloping  these  relations,  the  love  of  God  to  which 
men  could  turn,  and  in  the  glow  of  which  they  could  transform 
the  pure  selfishness  of  natural  law  into  the  pure  altruism  of  super- 
natural law.  The  passage  in  which  he  describes  this  transition 
shows  the  idealism,  that  underlay  the  utilitarianism  of  his 
philosophy.  This  idealism  is  continually  in  sight,  and  adds  a 
vivid  interest  to  almost  every  proposition  that  he  advances. 
When  we  have  a  utilitarianism  that  is  the  necessary  but  not  the 
last  resort  of  the  human  soul,  humanity  feels  that  it  can  adopt  it 
without  a  sense  of  shame.  Indeed,  as  we  have  seen,  Mr.  Chitty 
adopted  it  with  a  sense  of  enthusiasm. 

In  considering  the  Observations  we  may  dismiss  Vattel's  profuse 
apologies  for  venturing  to  criticize  his  great  master,  Wolff, 
without  further  comment  than  the  remark  that  local  anaesthetics 
of  this  type  are  very  characteristic  of  our  author.  He  does  not 
spare  the  scalpel,  bub  skilfully  manages  to  convey  the  impression 
that  it  hurts  the  surgeon  more  than  the  patient.  Indeed  such 
was  his  respect  for  Wolff  that  probably  this  was  true.  The  work 
opens  with  the  end  and  aim  of  Being.  Our  first  and  most  general 
obligation,  the  foundation  of  all  other  obligations,  is  to  work  for 

1  The  English  editions  of  1760,  1797,  and  1834  are  not,  it  would  seem, 
included,  in  limber's  Bibliography  (Dans  le  Droit  des  Gens  Moderne  de  I' Europe, 
edit.  Guillaumin,  1861,  p.  446).  See  M.  P.  Padior-Foderers  edition  of  Le 
Droit  des  Gens  (Paris,  1683),  vol.  i.,  p.  xiii  (n.).  This  edition  is  probably 
the  best  and  is  largely  followed  hero  so  far  as  the  text  and  the  facts  ot  Vattel's 
life  are  concerned.  But  see  also  Hoffmann's  edition  ot  1835,  containing  Sir 
James  Macintosh's  Essay  on  the  Law  of  Nature  and  Nations. 

32 


482  VATTEL 

our  individual  happiness  and  well-being.  Now  perfection  alone 
can  secure  perfect  happiness.  Therefore,  each  must  work  for  his 
own  perfection,  and  this  can  only  be  done  by  acquiring  and  prac- 
tising virtue.  How  near,  he  asks,  does  this  natural  ideal  approach 
the  Christian  ideal  ?  Have  we,  for  instance,  a  natural  duty 
to  love  our  enemies  ?  This  is  discussed  in  a  remarkable 
passage  : 

"Nous  nous  aimons  premierement  nous-memes,  et  nous  nous 
devons,  preferablement  a  tous,  le  soin  de  notre  conservation  et 
celui  d'avancer  notre  perfection.  Mais  1'homme  ne  pouvant  se 
suffire  a  soi-meme,  se  conserver  et  se  perfectionner  seul  et  sans  le 
secours  de  ses  semblables,  la  nature  et  1'essence  des  hommes  les 
obliges nt  a  s'aider  reciproquement,  et  il  faut  qu'ils  y  soient  sin- 
cerement  et  constamment  disposes  :  d'oii  il  suit,  qu'ils  doivent 
s'aimer  les  uns  les  autres.  Mais  1'amour  que  je  dois  aux  autres 
ne  derivant  que  de  celui  que  je  me  dois  a  moi-meme,  il  cede  a 
celui-ci  et  ne  peut  jamais  lui  nuire.  Si  un  homme  rompt  les 
liens  qui  doivent  nous  unir,  et  se  declare  mon  ennemi,  cherchant 
a  me  nuire,  bien  loin  de  m'aider,  il  m'est  permis  de  faire  contre 
lui  tout  ce  qui  est  necessaire  a  ma  defense  et  a  ma  surete.  Mais 
comme  cette  division  est  un  mal  dans  la  societe  humaine,  et  un 
mal  pour  moi-meme,  je  dois  faire  mon  possible  pour  empecher 
qu'elle  ne  s'aigrisse,  et  pour  la  finir  entierement ;  et  rien  n'y 
contribuera  da  vantage  que  ma  moderation  dans  ma  juste  defense, 
et  la  generosite  avec  laquelle  je  rendrai,  dans  1'occasion,  a  mon 
ennemi  meme  les  devoirs  de  Phumanite,  et  lui  ferai  tous  les  biens 
qui  ne  contribueront  pas  a  le  mettre  mieux  en  etat  de  me  nuire, 
ou  a  lui  dormer,  et  a  ses  pareils,  plus  de  hardiesse  a  m'attaquer  " 
(pp.  35-6). 

We  cannot  go  farther  than  that  if  we  base  our  actions  on  the 
simple  nature  and  essence  of  men  in  their  mutual  relations.  If 
you  desire  more  than  this  you  must  turn  to  the  love  of  God.  If 
the  heart,  Vattel  adds,  is  actually  inflamed  with  that  love,  then 
it  is  really  possible  to  love  your  enemies.  Morality  can  only  be 
carried  to  its  highest  point  of  perfection  by  the  aid  of  a  just  con- 
ception of  the  supernatural.  Vattel  then  elaborates  an  utili- 
tarian system  of  psychology  based  on  the  relations  of  men.  The 
system  is  empirical,  and  Vattel  entirely  declines  to  adopt  Wolff's 
great  attempt  to  apply  mathematical  thought  to  the  moral 
sciences.  The  basis  of  his  system  of  humanitarianism  is  that  the 
"  right  "  of  demanding  help  from  other  men  is  a  "  perfect  right," 
inasmuch  as  there  is  joined  to  it  the  right  of  constraining  those 
who  refuse  to  allow  a  man  to  exercise  this  right. 


VATTEL  483 

The  First  Part  of  the  book  concludes  with  a  discussion  of  the 
measure  of  damages  caused  by  a  wrongful  act.  There  must  be  a 
certain  proportion  between  the  punishment  and  the  crime.  This 
proportion  must  be  maintained  even  if  the  punishment  will  not 
prevent  the  wrongdoing.  If  capital  punishment  only  will  prevent 
apple-stealing  from  an  orchard,  the  loss  must  be  tolerated.  A 
man  has  a  duty  to  preserve  and  protect,  not  only  himself  but 
others,  and  if  the  loss  in  question  is  of  less  importance  to  a  man's 
perfection  than  kindly  conduct,  then  the  loss  must  be  suffered. 
If,  however,  it  is  found  that  certain  offences  become  common  it 
may  be  necessary  to  inflict  penalties  out  of  proportion  to  the 
offences  in  order  to  preserve  society. 

The  Second  Part  deals  with  certain  elementary  propositions, 
Vattel  discusses  the  difference  hi  a  primitive  community  between 
the  gifts  of  nature  and  the  fruits  of  industry.  The  first  are  held 
in  common  by  the  whole  community,  but  each  man  has  "  un  droit 
de  preference  sur  les  fruits  de  son  Industrie  et  de  son  travail." 
The  result,  in  the  end,  is  the  dissolution  of  primitive  conditions. 
A  man  cultivates  a  piece  of  land  ;  discovers  that  he  has  a  special 
right  to  the  fruits  of  the  field,  and  appropriates  them  ;  insensibly 
he  acquires  a  right  to  the  field  itself,  and  his  successors  continue 
to  hold  it.  In  this  demonstration  we  sde  clearly  enough  the 
peculiar  vice  of  eighteenth-century  speculation.  Had  Vattel  not 
been  content  to  reason  from  the  necessarily  sophisticated  outlook 
of  his  own  age  and  class,  but  had  turned  to  the  examination  of  the 
village  communities  within  his  reach,  he  would  have  seen  that,  in 
fact,  his  theory  was  absolutely  untrue  ;  that  the  appropriation  of 
the  fruits  of  the  soil  had  gone  on  for  untold  centuries  without 
individual  appropriation  of  the  soil.  Vattel  attacks  Wolff's 
theory  of  the  origin  of  property  and  ownership  as  a  result  of  the 
exercise  of  natural  liberty  and  apparent  needs,  but  his  own 
generalization  is  far  less  convincing.  It  is  as  follows  :  As  the 
race  multiplied  the  simple  products  of  the  earth  ceased  to  be 
sufficient ;  industry  and  art  became  necessary ;  foreseeing  men 
began  to  provide  against  the  future,  and  to  cultivate  fields  instead 
of  roaming  at  large.  A  general  right  to  everything  existed,  so  these 
men  could  not  be  restrained  from  taking  a  particular  portion  of 
land  and  renouncing  the  rest.  They  thereupon  acquired  the  right 
to  the  produce  of  this  soil.  Others  followed  their  example  : 
"  voila  la  propriete  et  le  domaine  etablis."  In  the  light  of  modern 
investigations  it  is  probable  that  Wolff's  speculations  are  nearer 


484  VATTEL 

the  truth  than  those  of  Vattel.  But  the  subject  is  not  one  for 
speculation  at  all.  It  is  a  question  of  fact  to  be  ascertained  in 
accordance  with  correct  laws  of  evidence. 

The  Third  Part  discusses  some  interesting  questions  of  contract 
and  lays  down  two  propositions  of  natural  law  :  first,  that  no  one 
can  be  presumed  to  have  abandoned  property ;  and  secondly, 
that  a  holder  in  good  faith  must  be  protected. 

The  Fourth  Part  continues  the  discussion  of  contracts,  raising 
questions  of  curious  interest  such  as,  can  a  man  accept  an  offer 
by  silence  ?  must  a  seller  point  out  the  patent  faults  of  his  goods  ? 
In  the  latter  case  Vattel  is  apparently  guided  by  the  maxim 
caveat  emptor.  The  discussion  as  to  accidental  injury  to  a  work- 
man is  interesting.  The  employer  is  responsible,  in  the  case  of 
a  hired  workman,  but  not  where  the  work  is  done  by  a  contractor. 

The  Fifth  Part  continues  the  discussion  of  special  cases.  Are 
lotteries  allowable  by  the  law  of  nature  ?  Vattel,  in  opposition  to 
Wolff,  declares  that  they  are  allowable.  Again  Vattel  upholds 
hi  principle  contracts  of  insurance  made  in  good  faith  after  the 
event.  He  agrees  that  it  is  illegal  to  agree  to  terminate  a  dif- 
ference by  a  duel.  He  declares  that  a  vendor  of  land  can  reserve 
a  right  of  passage  over  it  for  the  use  of  a  neighbour.  Problems 
of  these  various  types  are,  of  course,  familiar  to  English  lawyers. 

In  the  Sixth  Part,  after  a  discussion  of  certain  questions 
relating  to  land  (such  as  the  right  to  the  surface)  Vattel  proceeds 
to  discuss  the  law  of  necessity.  He  is  surprisingly  and  admirably 
uncompromising  as  to  the  limits  of  lawful  action  in  cases  of 
necessity.  He  lays  down  the  definite  principle  :  "  qu'il  ne  nous 
est  jamais  permis  de  faire  tort  a  quelqu'un,  d'aller  contre  son 
droit  bien  etabli."  There  is  a  right  to  do  all  things  that  are  not 
illegal  in  themselves  or  contrary  to  the  absolute  right  of  another 
person.  For  instance,  you  may  kill  an  aggressor  because  he 
began  the  evil,  and  has  not  an  exclusive  right  to  preserve  his 
own  life.  But  you  must  not  kill  a  defenceless  person  for  the  pur- 
poses of  food  hi  a  case  of  desperate  necessity,  unless  he  voluntarily 
consents  to  sacrifice  himself  for  others. 

Wolff  denies  this  last  position  (s.  587)  on  the  ground  that  a 
man  has  no  right  over  his  own  life  and  therefore  cannot  consent 
to  give  it  up.  This,  as  Vattel  points  out,  is  illogical  since  the  same 
argument  would  forbid  a  man  to  sacrifice  his  life  for  his  country. 
Wolff,  while  declaring  that  a  boatful  of  men  ought  rather  to  die 
of  hunger  than  feed  upon  each  other,  yet  allows  a  party  to  make 


VATTEL  485 

a  hopeless  sally  to  save  a  town.  Vattel  will  have  none  of  this. 
"  Je  ne  voudrois  done  pas  dire  qu'un  homme  n'est  point  le  maitre 
de  sa  propre  vie  ;  mais  je  dirois,  qu'il  est  oblige  de  la  conserver 
precieusement,  a  moins  qu'il 'n'ait  des  raisons  tres-fortes  et  tres 
importantes  de  1'exposer,  ou  meme  de  la  sacrifier."  The  general 
rule  of  necessity  is  stated  as  follows  :  "II  faut  choisir  le  plus 
grand  bien,  ou  le  moindre  mal ;  mais  en  considerant  la  chose 
dans  toute  son  etendue,  avec  toutes  les  liaisons  et  toutes  ses 
consequences  et  dependances.  Car  la  decision  ne  doit  pas  se 
fonder  seulement  sur  le  cas  present,  considered  en  lui-meme  et 
independamment  de  ses  consequences  dans  le  monde."  Vattel 
proceeds  to  exemplify  this  doctrine  by  a  protest  against  the  use 
of  poisoned  weapons — a  use  that  had  been  justified  by  Wolff. 
If  the  use  established  itself,  "la  guerre  deviendroit  atroce,  ses 
maux  n'auroient  plus  de  bornes,  et  elle  seroit  capable  de  detruire 
le  genre-humain  "  (p.  213).  But  does  not  this  argument  destroy 
itself  and  re-establish  Wolff's  position  ?  The  more  terrible  war 
is  made,  the  less  likely  it  is  to  be  waged.  The  argument  against 
poisoned  weapons  applies,  if  it  applies  at  all,  with  renewed  force 
to  the  use  of  airships  from  which  explosives  can  be  poured  upon 
defenceless  towns,  involving  combatants  and  non-combatants  in 
irretrievable  destruction.  The  whole  tendency  of  war  is  to  become 
more  terrible  and,  in  fact,  less  frequent  and  less  destructive.  War 
was  far  more  bloody  when  it  resolved  itself  into  a  vast  number  of 
single  duels  fought  a  outrance  according  to  highly  artificial  rules. 
According  to  Vattel's  own  principles,  the  more  terrible  war  is  made 
the  more  likely  is  it  to  fulfil  the  laws  of  nature  and  secure  peace. 

The  Seventh  Part  opens  with  an  interesting  discussion  of  the 
manner  of  counting  votes.  Here  Vattel  follows  Grotius  and  not 
Wolff.  The  principle  laid  down  is  that  those  who  have  any 
opinion  in  common  must  be  ranged  together  for  the  purpose  of 
arriving  at  a  decision.  Thus  if  four  judges  condemn  a  man  to 
death,  two  to  banishment,  two  to  a  thousand  crown  fine,  two 
to  a  hundred  crown  fine,  and  three  are  for  an  acquittal,  we  have 
nine  in  favour  of  life  against  four  in  favour  of  death  ;  but  ten  are 
in  favour  of  some  form  of  punishment,  while  only  three  are  in 
favour  of  freedom.  So  the  man  must  live,  but  must  be  punished. 
Six  are  in  favour  of  death  or  banishment,  and  seven  in  favour  of 
something  else.  Therefore  the  punishment  must  'be  a  fine,  and 
the  higher  fine,  since  eight  are  in  favour  of  that  at  least — for  the 
greater  includes  the  less.  So  the  man  is  fined  a  thousand  crowns. 


486  VATTEL 

It  is  an  interesting  discussion,  but  it  leaves  out  of  account  the 
fundamental  problem,  why  should  a  majority  carry  the  day  ? 
Counting  by  heads  is  surely  not  the  result  of  the  law  of  nature, 
for,  in  fact,  in  nature  it  is  always  one  head  that  dominates  the 
rest.  The  rule  is  presumably  a  rule  of  convenience  which  in  fact 
gives  the  law  of  intellectual  dominance  full  play  while  it  creates 
that  illusory  atmosphere  of  equality  which  is  so  dear  to  the  human 
heart.  But  it  is  necessary  to  lay  stress  on  the  fact  that  there  is 
no  natural  law  which  gives  a  special  sanction  to  the  decision  of 
majorities,  though  possibly  there  are  signs  of  conventions  on 
the  subject  in  the  earliest  stages  of  tribal  life.  The  elemental 
man  had  no  respect  for  liberty,  equality,  or  fraternity  outside 
his  clan  or  kinship  bond  or  hunting  troop  ;  while  inside  that 
fundamental  unit  ex  hypothesi  none  of  these  things  existed.  In 
their  place  was  chieftainship,  the  Manus,  the  system  of  slavery.1 
The  idea  of  equality  was  entirely  remote  from  tribal  life,  and 
consequently  the  democratic  idea  of  government  by  majorities 
was  non-existent.  But  there  was,  as  there  is  to-day,  a  primary 
force  or  passion  (the  existence  of  which  is  acutely  recognized  by 
Vattel)  which  tended  to  create  a  conventional  recognition  of 
human  equality.  I  refer  to  the  passion  of  jealousy.  A  force  so 
disruptive  had  to  be  met  by  definite  structural  variations  in  social 
life.  Consciously  or  unconsciously  the  fiction  of  equality  was 
introduced  to  combat  this  universal  force  or  passion.  If  men 
could  be  led  to  believe  that  they  were  equal,  society  could  maintain 
stable  equilibrium.  Out  of  this  transparent  fiction  an  ideal  of 
real  equality  emerged,  and  human  society  through  long  ages  has 
made  from  age  to  age  desperate  efforts  to  realize  on  earth  the 
platonic  pattern  of  a  divine  society  laid  up  in  Heaven.  To-day 
the  fiction  is  as  transparent  as  ever,  but  the  ideal  has  at  last 
descended  from  a  transcendental  Heaven  into  the  heart  of  man, 
and  to-day  efforts,  unprecedented  in  the  history  of  mankind, 
are  in  progress  to  secure  a  real  equality  among  the  sons  of  men. 

Vattel  is  full  of  interest  when  he  turns  from  the  doctrine  of 
human  equality  to  the  subject  of  women.  He  sees  here,  at  any 
rate,  no  equality,  nor  has  he,  despite  his  suavity,  any  illusions. 

1  It  is  to  be  noticed  that  while  Wolff  denies  that  slavery  existed  in  primi- 
tive communities,  Vattel  declares  that  the  slave  could  come  into  existence 
as  soon  as  other  sorts  of  property.  The  right  to  kill  involves  the  lesser  right 
to  enslave.  Vattel's  assertion  that  parents  have  no  natural  right  over  the 
lives  and  liberty  of  their  children  must  be  met  by  the  answer  that  for  untold 
years  they,  in  fact,  exercised  such  rights.  No  doubt  this  was  wrong,  but  was 
it  more  unnatural  than  the  right  to  die  which  is  supported  by  Vattol  ? 


VATTEL  487 

He  sees  nothing  fundamental  in  the  doctrine  of  monogamy.  He 
denies  that  the  laws  of  nature  forbid  plurality  of  wives,  though  he 
admits  the  inexpediency,  in  most  cases,  of  polygamy.  In  certain 
cases,  however,  he  admits  its  use  and  possibly  its  necessity,  while 
he  thinks  that  concubinage  can  quite  well  be  legalized.  He  claims 
that  a  man  should  be  allowed  a  divorce  for  sterility,  and  asserts 
that  marriage  is  never  indissoluble  in  itself  but  that  natural  law 
imposes  on  us  the  obligation  never  to  break  it  without  strong  and 
just  reasons,  especially  if  there  are  children.  His  treatment  of 
this  subject  is  a  striking  instance  of  the  luminous  way  in  which 
he  applies  the  principle  of  utilitarianism  to  human  problems.  It 
is  from  the  utilitarian  standpoint  that  he  goes  on  to  inquire  as  to 
the  person  to  whom  authority  belongs  in  marriage.  It  is  curious 
that  a  question  which  is  creating  such  unpleasant  interest  in  the 
present  day  should  have  been  discussed  with  such  gusto  more  than 
a  century  and  a  half  ago.  M.  de  Vattel  would  not  have  been 
popular  with  the  army  of  women  who  are  demanding  the  franchise 
to-day.  His  cold  reasoning  and  his  uncompromising  views  on 
the  superiority  of  the  male  sex  would  have  caused  pain  in  many 
sensitive  hearts.  Far  otherwise  would  it  be  were  M.  Christian  de 
Wolff  suddenly  to  glide  once  more  on  to  the  platform  of  life  with 
his  thrilling  declaration  :  "  Le  Droit  JNaturel  etablit  une  parfaite 
egalite  entre  le  mari  et  la  femme  "  and  his  emphatic  repudiation 
of  the.  predominance  of  the  male  sex.  The  text  of  Vattel's  dis- 
agreement with  his  great  master  deserves  to  be  reprinted  :  He 
asserts  that  men  are  "plus  capables  des  affaires  importantes, 
plus  fermes,  plus  forts  et  plus  courageux.  II  paroit  done  que  la 
nature  a  destine  la  femme  a  vivre  sous  la  protection  du  mari,  et 
cette  protection  donne  deja  une  superiorite."  Some  one,  says 
this  jurist,  even  then  trembling  on  the  verge  of  matrimony,  must 
lead  and  that  one  must  be  the  stronger.  "Dans  une  pareille 
societe,  dis-je,  celui  qui  est  le  plus  capable  ait  le  droit  de  decider, 
en  cas  de  partage  dans  les  sentimens."  Then  follows  the  touch  of 
sentiment  that  is  intended  to  sweeten  the  bitter  draught.  The 
husband  must  use  his  superiority  "  avec  douceur,  avec  sagesse  et 
avec  equite,  pour  1'avantage  commun."  Vattel  is  not  as  wise  as 
usual  here  ;  some  things  in  life  should  be  taken  for  granted.  But 
he  adds,  to  cure  all,  "  outre  1'amour  et  les  soins  que  le  mari  lui  doit, 
elle  a  ses  droits,  qu'il  est  oblige  de  respecter."1  Wolff's  answer,  of 

1  It  should  be  noticed  that  in  the  Eighth  Part  he  asserts  (against  WolfY) 
that  women  are  far  less  capable  of  public  government  than  men  (p.  355). 


488  VATTEL 

course,  would  have  been  that  Vattel  was  begging  the  question, 
that  he  was  constructing  a  universal  argument  from  his  own  very 
imperfect  knowledge  of  the  past,  when  in  fact  the  law  of  nature 
depends  as  much  on  the  potentiality  of  women  as  on  their  actual 
achievement.  You  cannot,  for  instance,  argue  that  there  is  a 
law  of  nature  asserting  that  the  negro  is  necessarily  inferior  to 
the  Aryan.  Wolff  in  asserting  the  equality  of  the  sexes  no  doubt 
wrote  as  a  theorist,  while  Vattel  in  denying  the  equality  wrote  as 
a  practical  utilitarian .  But  the  weakness  of  the  utilitarian  position 
is  that  while  it  necessarily  depends  on  the  appeal  to  experience, 
it  invariably  appeals  to  a  very  limited  experience.  If  experience 
were  exhaustive,  the  idealist  and  the  utilitarian  would  be  at  one. 
But  as  it  is,  there  can  be  no  finality  about  the  utilitarian  position, 
which  shifts  in  the  direction  of  idealism  as  the  ages  pass  and 
knowledge  increases. 

It  is  very  difficult  to  ascertain  how  Vattel  formulated  his  laws 
of  nature.  We  have  seen  that  he  holds  it  to  be  unnatural  for  a 
parent  to  enslave  or  kill  his  child.  On  the  other  hand,  he  holds 
that  though  the  giving  of  a  bad  example  by  a  parent  is  a  great 
fault,  it  is  not  such  an  infringement  of  a  natural  law  as  to  consti- 
tute a  natural  injury.  Now  no  doubt  this  distinction  does  exist 
in  municipal  law.  Until  the  year  1908  a  drunken  mother  could 
carry  her  children  with  her  to  any  tavern  in  the  land,  and  they 
not  infrequently  shared  her  libations  from  their  tenderest  infancy. 
Moreover  it  was  decided  as  long  ago  as  February  25,  1796,  in  the 
deservedly  immortal  case  of  Hodges  v.  Hodges*  that  the  common 
law  of  England  imposed  upon  parents  no  duty  to  educate  their 
children.  Lord  Kenyon  stated  the  legal  position  in  the  words, 
"  A  father  was  bound  by  every  social  tie  to  give  the  children  an 
education  suitable  to  their  rank,  but  it  was  a  duty  of  imperfect 
obligation,  and  could  not  be  enforced  in  a  court  of  law."  It  was 
not  until  August  15,  1876,  that  the  legislature  turned  this  "  duty 
of  imperfect  obligation  "  into  a  duty  enforceable  in  a  court  of  law 
by  declaring  that  "  it  shall  be  the  duty  of  the  parent  of  every  child 
to  cause  such  child  to  receive  efficient  elementary  instruction  in 
reading,  writing,  and  arithmetic,  and  if  such  parent  fail  to  perform 
such  duty,  he  shall  be  liable  to  such  orders  and  penalties  as  are 
provided  by  the  Act."2  The  tendency  of  municipal  law  to-day 
is  in  the  direction  of  enlarging  the  imperfect  obligations  of  natural 

1  Pcake's  Reports  of  Cases  at  Nisi  Prius,  vol.  ii.,  p.  79. 

2  The  Elementary  Education  Act,  1876  (39  &  40  Viet.,  c.  79),  s.  4. 


VATTEL  489 

law  ;  but  still,  of  course,  the  distinction  between  the  two  is  very 
marked.  Yet  how  natural  law  can  regard  as  not  naturally 
injurious  conduct  on  the  part  of  a  parent  that  leads  a  child 
directly  into  the  very  mischiefs  aimed  at  by  the  imperfect  obliga- 
tions of  natural  law  as  well  as  by  municipal  law  it  is  not  easy  to 
see,  especially  if  we  adopt  as  the  basis  of  all  natural  law  the  dogma 
that  the  ultimate  obligation  of  man  is  so  to  acquire  and  practise 
virtue  as  to  secure  that  personal  perfection  which  is  essential  to 
complete  personal  happiness.  The  truth  is  that  Vattel  only 
develops  the  premisses  on  which  he  bases  his  theory  of  natural 
law  so  far  as  that  development  does  not  interfere  with  his  own 
preconceived  notions  of  what  is  likely  to  be  useful  in  the  evolution 
of  society.  If  his  absolutely  artificial  utilitarian  standard  does 
not  square  with  the  logical  results  of  the  premises  from  which  he 
starts  in  reconstructing  the  evolution  of  society,  those  results  are 
abandoned.  This  is  the  necessary  and  the  vicious  consequence  of 
the  a  priori  method.  It  is  all  very  well  to  have  a  Theory  of 
Evolution  and  check  it  and  correct  by  historical  tests,  but  it  is 
quite  another  thing  to  have  a  Theory  of  Evolution  and  a  Theory 
of  Social  Life  and  to  attempt  to  check  and  correct  one  theory  by 
the  other.  The  appeal  to  experience  is  the  only  test,  and  this 
applies  in  the  realm  of  natural  juridical  conceptions  as  truly  as  in 
the  realm  of  material  energy  and  force. 

It  is  interesting  to  see  how  Vattel  is  faced  with  these  difficulties 
when  he  tries  to  explain  why  marriages  between  ascendants  and 
descendants  are  contrary  to  natural  law.  He  flings  aside  Wolff's 
theory  that  such  marriages  are  forbidden  by  respect  and  reverence, 
and  says  that  they  are  inexpedient,  against  the  law  of  perfection, 
likely  to  be  barren  and  occasion  natural  horror.  His  own  theory 
is  not  in  the  least  convincing.  He  begins  by  saying  that  they  are 
contrary  to  the  law  or  theory  of  utility ;  he  goes  on  to  say  that 
they  infringe  the  law  of  perfection  on  which  his  social  scheme  is 
based — 'thus  attempting  by  mere  assertion  to  bring  his  two 
theories  into  accord  ;  he  then  makes  a  desperate  appeal  to  ex- 
perience, without  any  knowledge  that  justifies  the  appeal ;  and 
finally  really  falls  back  on  Wolff's  theory,  on  the  theory  elaborated 
in  (Edipus  the  King.  Now  what  Vattel  failed  to  recognize  was 
that  mere  utilitarianism — natural  utilitarianism — is  incapable  of 
solving  problems  that  involve  the  spiritual  depths  of  human 
nature.  A  transcendental  element  is  involved  which  is  not  ex- 
plained by  a  reference  to  "  natural  horror."  This  element  was  no 


490  VATTEL 

doubt  evolved  from  some  utilitarian  basis  ;  but  once  in  existence 
it  regulates  the  behaviour  of  the  whole  scale  of  creation  that 
possesses  it  in  a  way  that  does  not  apply  to  a  lower  scale.  Love 
itself  has  its  roots  on  earth  though  its  flowers  and  fruits  belong 
to  a  region  of  self-sacrifice  that  can  only  be  called  transcendental. 
The  relation  of  human  parent  and  child  is  regulated  by  this 
transcendental  love  ;  physical  relations  are  in  fact  replaced  by 
metaphysical  relations,  and  any  tendency  to  reverse  the  process 
long  since  became  so  impossible  as  to  be  unnatural  even  in  the 
case  of  an  adopted  child.  Vattel's  attempt  to  create  a  great  gulf 
between  the  physical  and  the  metaphysical  has  made  it  impossible 
for  him  to  supply  a  metaphysic  of  social  life.  Wolff  refused  to  cut 
himself  off  from  this  means  of  analysis,  with  the  result  that  he 
finds  the  true  solution. 

Each  of  these  jurists  might  well  have  based  their  discussion  of 
the  right  of  inheritance  on  the  same  ground — that  the  relationship 
of  parent  and  child  is  such  as  to  involve  perfect  continuity  of 
possession.  This  is  evidently  in  Wolff's  mind  when  he  asserts 
that  the  right  of  inheritance  is  a  complete  right.  Vattel,  with 
singular  lack  of  historical  knowledge,  denies  this  on  the  ground 
that  such  a  theory  destroys  the  natural  right  of  will-making. 
He  therefore  compromises  with  his  master  by  asserting  that  a 
child  has  a  "  perfect  right  "  to  succeed  to  a  portion  of  the  estate 
of  his  parent,  a  portion  determined  by  circumstances  ;  and  that 
a  parent  has  an  equal  right  to  the  heritage  of  his  childless  child 
(p.  295).  Here  we  have  arbitrary  utilitarianism  running  havoc 
among  all  analyses  and  all  history.  '  There  is  nothing  elemental 
in  the  power  of  will-making.  Primitive  races  know  nothing  of  it. 
There  is  something  primitive  in  the  notion  of  transmission  to 
children,  and  the  practice  of  the  earliest  races  coincides  with  what 
we  might  expect  to  be  the  case  from  the  transcendental  relation- 
ship of  human  parent  and  child  or  even  adoptive  child.  Vattel's 
law  of  perfection  would  indeed  seem  to  involve  this  transmission 
of  property  from  parent  to  child  which  Wolff  asserts  to  be  a 
"  perfect  right." 

In  the  Eighth  Part  Vattel  turns  to  the  question  of  sovereignty. 
He  does  not  accept  the  divine  right  of  kings.  The  only  sovereign 
is  the  community  itself,  which  is  capable  of  delegating  its  power 
but  not  of  finally  parting  with  that  power.  The  people,  he 
asserts,  always  hold  the  reversion  of  power  even  if  that  reversion 
is  not  nominally  reserved,  and  can  resume,  for  just  cause,  their 


VATTEL  491 

rights.  No  man  can  possess  a  patrimonial  kingdom.  "Le 
peuple  seul,  j'entens  le  peuple  entier  et  unanime,  possede  1'empire 
comme  veritablement  patrimonial "  (p.  343).  The  patrimony  is 
not  in  a  majority  of  the  people  but  in  the  whole  people.1  The 
rights  of  a  majority  are  merely  rights  of  expediency,  he  in  effect 
says.  It  is  therefore  necessary  to  submit  to  the  majority  in  a 
state  even  if  the  fact  involves  some  injustice.  But  this  is  not  so 
if  the  majority  becomes  oppressive  and  destructive.  It  is  curious 
to  see  how  Vattel's  mind  is  continually  wavering  between  his 
theories  of  utilitarianism  and  perfection.  Having  made  his 
doctrine  of  sovereignty  clear,  he  goes  on  to  state  that  if  a  people 
unanimously  elect  a  despot,  the  contract  will  bind  them  but  will 
not  bind  the  children  of  the  original  electors.  This,  of  course,  is 
a  compromise,  but  it  is  quite  inconsistent  with  the  original 
proposition  that  a  reversion  of  power  is  always  sleeping  in  gremio 
popudi.  That  this  latter  proposition  is  the  one  that  he  finally 
holds  is  shown  by  his  subsequent  statement  that  the  people  have 
the  right  to  decide  between  two  pretenders  to  the  crown.  He  has 
much  that  is  very  significant  on  the  question  of  state  religions. 
The  priesthood  must  not  be  independent :  "  Mais  si  vous  les 
rendez  independantes  de  la  puissance  Civile,  vous  ouvrez  la  porte 
a  mille  desordres,  a  des  troubles  dangereux  ;  et  les  Rois  ne  font 
pas  fermes  sur  leur  Trone  "  (p.  319).  But  while  the  State  must 
control  the  priesthood  it  must  not  lend  itself  to  acts  of  uniformity  : 
"La  Societe,  ou  le  souverain  qui  la  represente,  n'a  done  aucun 
droit  de  gener  la  conscience  des  citoyens  "  (p.  370).  There  we 
must  leave  Vattel's  Observations,  a  work  of  originality  and  insight 
that  deserves  to  be  reprinted,  for  it  contains  the  seeds  of  most  of 
the  thought  that  dominated  Europe  and  England  from  1789  to 
1830. 

The  above  analysis  of  Vattel's  fundamental  ideas  will  enable  us 
to  treat  with  brevity  his  great  work  Le  Droit  des  Gens.  It  is  not 
difficult  to  see  how,  from  the  premisses  set  out  above,  he  would 
apply  the  laws  of  nature  to  the  interrelations  of  sovereign  peoples. 
His  preface  opens  with  the  magnificent  untruth  which  the 
Institutes  of  the  Emperor  Justinian  enunciated  for  all  time  :  jure 
enim  naturali  db  initio  omnes  homines  liberi  nascebantur  ;z  a  legal 
fiction  which  in  the  evolution  of  things  will  at  last  become  a  natural 

1  It  should  be  noticed  that  here  Vattol  appreciates    the  fundamental 
difficulty  discussed  above  of  the  question  of  natural  rights  residing  in  a 
majority. 

2  Institutionum  Libri  Quattuor,  lib.  i.,  tit.  2. 


492  VATTEL 

truth.  He  refers  to  Thomas  Hobbes  as  being  the  first  to  give  a 
distinct  though  imperfect  notion  of  the  rights  of  nations.  But 
Wolff  and  Vattel  differ  from  Grotius,  Hobbes,  Pufendorf  and 
Barbeyrac  in  seeing  that  the  law  of  nature  dealing  with  indi- 
viduals must  be  modified  if  it  is  to  be  applied  to  political  societies. 
Such  societies  are  moral  persons,  but  they  differ  in  their  nature 
from  the  moral  man.  Closely  as  Vattel  follows  Wolff  he  is  careful 
to  point  out  the  many  fundamental  differences  between  them. 
Wolff  asserted  the  existence  of  patrimonial  kingdoms  ;  Vattel  will 
have  none  of  them  ;  Wolff  justified  the  use  of  poisoned  weapons  ; 
Vattel  will  have  none  of  them  either.  But  a  deeper  difference 
exists.  Wolff  derives  the  idea  of  a  voluntary  society  from  a  kind 
of  mighty  republic  founded  by  nature  herself,  a  universal  society 
of  which  all  the  nations  of  the  world  are  members.  Consequently 
the  civil  law  of  the  natural  republic  of  men  would  be  the  law  of 
all  its  members.  "  Cette  idee,"  writes  Vattel,  "  ne  me  satisfait 
point,  et  je  ne  trouve  la  fiction  d'une  pareille  republique  ni  bien 
juste,  ni  assez  solide  pour  en  deduire  les  regies  d'un  droit  des  gens 
universel  et  necessairement  admis  entre  les  fitats  souverains."1 
He  can  recognize  no  other  natural  society  among  nations  than 
nature  has  established  among  all  men.  It  is  the  essence  of  all 
civil  society  that  each  member  has  ceded  a  part  of  his  rights  to  the 
whole  body  which  possesses  authority  over  all  the  members. 
"  On  ne  peut  rien  concevoir  ni  rien  supposer  de  semblable  entre 
les  nations.  Chaque  fitat  souverain  se  pretend,  et  est  effective- 
ment  independant  de  tous  les  autres."  The  laws  that  apply  to 
nations  differ  from  those  that  apply  to  men,  since  a  nation  is  a 
different  type  of  moral  being  from  a  man.  But  it  has,  neverthe- 
less, fundamental  and  necessary  laws  which  are  purely  natural  in 
their  origin,  and  these  are  supplemented  by  voluntary  laws  of 
convenience.  Vattel  elaborates  this  position  as  follows'  (I  use 
Mr.  Chitty's  revised  version) : 

"  The  necessary  and  the  voluntary  laws  of  nations  are  therefore 
both  established  by  nature,  but  each  in  a  different  manner : 
the  former,  as  a  sacred  law  which  nations  -and  sovereigns  are 
bound  to  respect  and  follow  in  all  their  actions  ;  the  latter  as 
a  rule  which  the  general  welfare  and  safety  oblige  them  to  admit 
in  their  transactions  with  each  other.  The  necessary  law  imme- 
diately proceeds  from  nature  ;  and  that  common  mother  of 
mankind  recommends  the  observance  of  the  voluntary  law  of 

1  But  it  was  his  goal  (see  p.  19  above). 


VATTEL  493 

nations,  in  consideration  of  the  state  in  which  nations  stand 
with  respect  to  each  other,  and  for  the  advantage  of  their  affairs. 
This  double  law,  founded  on  certain  and  invariable  principles, 
is  susceptible  of  demonstration,  and  will  constitute  the  principal 
object  of  this  work." 

It  is  necessary  before  going  on  to  deal  with  this  demonstration 
to  draw  attention  once  more  to  the  fact  that  Vattel's  mind  fails 
to  appreciate  the  profundity  of  Wolffs  intellect.  Vattel,  in  his 
elegant,  apologetic  way  which  perhaps  recalls  the  critical  manner 
of  Sainte-Beuve,  spurns  Wolff's  fundamental  assumption  of  a 
universal  republic  instituted  by  Nature  herself  of  which  all 
nations  of  the  world  are  members.  Far  be  it  from  me  to  assert,  or 
to  deny,  the  validity  of  such  an  assumption.  I  am  certainly  not 
prepared  to  deny  the  assumption,  for  it  is,  in  fact,  merely  the 
traditional  medieval  form  of  asserting  the  universal  brotherhood 
of  man — an  assertion  which  appeals  with  singular  attraction  to 
the  modern  mind.  Vattel,  however,  repudiates  the  assumption, 
and  he  is  undoubtedly  at  liberty  to  do  so  ;  but  he  proceeds  to  make 
a  new  assumption  which  involves  every  intellectual  difficulty 
presented  by  Wolff's  assumption  and  new  difficulties  as  well. 
He  assumes  that  a  nation  is  a  moral  being,  one  and  indivisible. 
I  do  not  desire  to  challenge  this  assumption- — if  we  are  to  be  in 
the  land  of  assumptions  at  all.  It  is  certainly  desirable  that 
nations  should  be  moral  beings,  and  probably  the  best  way  to 
make  them  so  is  to  assume  that  they  are  so.  But  Wolff's  assump- 
tion is  likely  in  the  long  run  to  prove  nearer  truth.  The  world 
is  probably  drifting  or  gliding  in  glacier-fashion  towards  the 
universal  republic  of  which  nations  are  the  members,  that  the 
great  German  philosopher  evolved  from  his  inner  consciousness. 
"  M.  D.  V."  in  fact  advocated  the  creation  of  such  a  Republic. 
And  we  must  remember  that  those  juridical  thinkers  who  enun- 
ciated from  the  days  of  Augustine  onwards  the  laws  of  nature  in 
society  were,  in  fact,  looking  towards  the  end  and  not  the 
beginning,  were  looking  for  what  should  be  when  they  thought 
that  they  were  looking  for  what  had  been  ;  that  they  were 
platonic  idealists  without  knowing  it ;  that  the  pattern  laid  up  in 
the  heaven  of  their  high  imaginings  was  what  they  saw,  and  that 
our  modern  investigations  into  actual  primitive  conditions  had 
and  could  have  no  meaning  or  attraction  for  them.  When  they 
wrote  of  the  law  of  nature  they  meant,  each  according  to  their 
respective  spiritual  insight  and  intellectual  gifts,  what  Plato, 


494  VATTEL 

what  Augustine,  what  Dante,  what  Sir  Thomas  More  meant. 
No  doubt  they  thought  they  were  dealing  with  reality ;  but  so, 
for  the  matter  of  that,  did  Euclid.  If,  then,  Wolff  and  Vattel 
were  dealing  not  with  reality  but  with  ideals  that  each  desired 
to  bring  down  into  the  realm  of  actualities,  Wolff  was  incom- 
parably the  greater  thinker.  A  universal  republic  is  a  higher 
ideal  than  a  family  of  nations  whose  morality  is  exhibited  in 
bloody  feuds,  in  inextinguishable  hatreds,  in  malice,  jealousy 
and  lust  for  power  :  in  every  possible  telescopic  magnification  of 
the  vices  of  petty  tribal  life .  It  is  not  unjust  to  make  this  criticism 
of  Vattel's  position,  for  that  position  is  a  persistent  criticism  of 
a  nobler  ideal  than  his  own,  a  criticism  adopted  for  the  purpose 
of  creating  a  purely  utilitarian  system  of  international  relations, 
a  system  that  to  this  hour  has  hampered  a  larger  outlook  on  the 
relations  of  organized  communities.  Limited  utilitarian  ideals, 
that  is  to  say,  the  hand-to-mouth  wisdom  of  practical  politicians, 
are  the  ideals  that  Vattel,  a  rather  shame-faced  follower  of  a 
much  greater  thinker  of  the  same  type,  Machiavelli,  crystallized 
for  the  use  of  the  Foreign  Offices  of  Europe  for  a  century  and  a 
half  after  his  death.  Vattel  was  essentially  a  diplomat,  and  he 
chose,  as  his  fundamental  assumption,  the  highest  ideals  con- 
sistent with  practical  political  life.  Having  done  that,  he  plunges 
into  current  political  problems  and  shapes  his  course  in  accordance 
with  the  apparent  needs  of  the  times.  He  takes  a  new  and  most 
useful  attitude  towards  these  problems.  He  is  above  all  a  practi- 
cal man,  and  therefore  he  abandons  the  stale  precedents  of  the 
classical  ages  and  uses  modern  instances  of  the  clearest  kind. 
"I  have  quoted  the  chief  part  of  my  examples  from  modern 
history,  as  well  because  these  are  more  interesting,  as  to  avoid  a 
repetition  of  those  which  have  already  been  accumulated  by 
Grotius,  Pufendorf,  and  their  commentators."  But  it  cannot  be 
said  that  his  examples  encourage  reliance  on  his  fundamental 
propositions. 

Let  me  now  briefly  refer  to  Vattel's  definitions  in  the  realm  of  the 
law  of  nations.  "Nations  or  states  are  bodies  politic,  societies 
of  men  united  together  for  the  purpose  of  promoting  their  mutual 
safety  and  advantage  by  the  joint  efforts  of  their  combined 
strength."  Such  a  society,  we  are  told,  is  a  moral  person  sus- 
ceptible of  obligations  and  rights.  The  law  of  nations  is  a  science 
which  teaches  the  rights  subsisting  between  nations  and  the 
obligations  corresponding  to  those  rights.  Nations  are  to  be 


VATTEL  495 

considered  as  so  many  free  persons  living  together  in  the  state  of 
nature.  The  entire  nation  (whose  common  will  is  but  the  result 
of  the  united  will  of  the  citizens)  remains  subject  to  the  laws  of 
nature  :  consequently  the  law  of  nations  is  originally  no  other  than 
the  law  of  nature  applied  to  nations.  This  application  gives  us 
the  necessary  Law  of  Nations  called  by  Grotius  "  the  internal  law 
of  nations  "  and  by  other  jurists  "the  natural  law  of  nations." 
Every  treaty  and  every  custom  which  contravenes  the  injunctions 
or  prohibitions  of  the  necessary  law  of  nations  is  unlawful  and 
condemned  by  the  law  of  conscience  even  if  validated  by  the 
external  law.  A  nation  is  obliged  to  live  on  the  same  terms  with 
other  nations  as  an  individual  man  was  obliged,  before  the 
establishment  of  nations,  to  live  with  other  men.  A  man  when 
he  joins  a  nation  is  still  bound  by  his  duties  to  the  rest  of  mankind. 
Men,  adds  Vattel,  are  naturally  equal,  and  a  perfect  equality 
prevails  in  their  rights  and  obligations,  as  equally  proceeding 
from  nature. 

It  would  answer  no  purpose  here  further  to  dwell  on  the 
unscientific  nature  of  these  various  assumptions.  I  pass  at  once 
to  the  general  laws  that  Vattel  derives  from  his  definitions.  He 
tells  us  that  each  individual  nation  is  bound  to  contribute  every- 
thing in  her  power  to  the  happiness  and  perfection  of  all  other 
nations.  But  each  nation  should  be  left  in  the  peaceable  enjoy- 
ment of  that  liberty  which  she  inherits  from  Nature.  It  follows 
also  from  the  natural  equality  of  all  men  that  nations,  being 
composed  of  free  persons  living  together  in  a  state  of  nature,  are 
naturally  equal  and  inherit  from  Nature  the  same  obligations 
and  rights.  It  also  follows  that  a  nation  is  mistress  of  her  own 
actions  so  long  as  they  do  not  affect  the  progress  and  perfect 
rights  of  any  other  nation.  These  and  their  derivatives  are  the 
Natural  Law  of  Nations.  It  is  a  necessary,  a  natural,  an  internal 
law  binding  the  national  moral  conscience.  The  external  law 
corresponding  to  this  internal  law  is  the  Voluntary  Law  deliber- 
ately adopted  by  nations,  which  as  supplemented  by  Con- 
ventional Law  (that  is  to  say,  the  law  contained  in  treaties)  and 
Customary  Law,  constitutes  the  Positive  Law  of  Nations.  This 
argument  concludes  with  a  characteristic  passage  :  "  As  the  Neces- 
sary law  is  always  obligatory  on  the  conscience,  a  nation  ought 
never  to  lose  sight  of  it  in  deliberating  on  the  line  of  conduct  she 
is  to  pursue  in  order  to  fulfil  her  duty  ;  but  when  there  is  a  question 
of  examining  what  she  may  demand  of  other  States,  she  must 


496  VATTEL 

consult  the  Voluntary  law  whose  maxims  are  devoted  to  the 
safety  and  advantage  of  the  universal  society  of  mankind."  This 
passage  exhibits  clearly  enough  the  real  difficulty  that  Vattel  (and 
indeed  his  predecessors  hi  thought)  had  not  the  courage  to  face. 
Vattel  is  in  reality  searching  for  a  sanction  to  his  law.  He  felt 
as  strongly  as  Austin  felt  that  a  law  involves  a  law-giver,  and  in 
fact  he  invents  a  sanction  for  the  Positive  Law  of  Nations  by 
creating  behind  it  the  Interior  Law  of  Nations.  We  see  at  once 
why  he  has  to  postulate  a  moral  consciousness  in  a  nation.  It  is 
necessary  to  find  a  sanction,  and  so  in  Kantian  fashion,  though  in 
pre-Kantian  days,  he  evolves  his  necessary  laws  that  bind  the 
consciousness  of  the  moral  beings  that  he  has  created.  Unlike 
Frankenstein,  he  was  not  doomed  to  see  these  beings  hurling  aside 
then*  moral  consciousness  and  their  internal  laws  in  the  very  name 
"of  the  Natural  Code  that  he,  scarcely  less  than  Rousseau,  helped 
to  frame  :  Napoleon  Buonaparte  was  not  yet  rocking  in  his 
Corsican  cradle  when  Emerich  de  Vattel  was  so  complacently 
pondering  on  these  things. 

Sovereignty. — Having  established  what  seemed  to  him  the 
unimpugnable  basis  of  the  family  of  nations,  Vattel  with  serene 
logic  unfolded  the  necessary  scheme  of  things.  A  nation,  as  he 
defines  it,  involves  a  Public  Authority  to  order  and  direct  what  is 
to  be  done  by  each  man  hi  relation  to  the  end  of  this  association 
of  men.  "  The  political  authority  is  the  sovereignty  ;  and  he  or 
they  who  are  invested  with  it  are  the  sovereign."  There  are  three 
kinds  of  sovereignty — a  Democracy  or  Popular  Government,  an 
Aristocratic  Republic  represented  by  a  Senate,  and  a  Monarchy 
represented  by  a  single  person.  Since,  "  to  preserve  and  to  perfect 
his  own  nature  "  is  the  sum  of  all  the  duties  of  a  moral  being  to 
himself,  so  it  must  be  with  a  nation.  "The  preservation  of  a 
nation  consists  in  the  duration  of  the  political  association  by 
which  it  is  formed,"  and  the  perfection  of  a  nation  is  found  when 
everything  in  it  must  conspire  "  to  procure  for  the  citizens  what- 
ever they  stand  in  need  of  for  the  necessities,  the  conveniences, 
the  accommodation  of  life,  and,  in  general,  whatever  constitutes 
happiness — with  the  peaceful  possession  of  property,  a  method 
of  obtaining  justice  with  security,  and,  finally,  a  mutual  defence 
against  all  external  violence."  A  nation  is  under  an  obligation 
to  preserve  itself  and  its  members,  and  it  has  a  right  to  everything 
necessary  to  its  preservation  and  is  not  unjust  in  itself  or  abso- 
lutely forbidden  by  the  law  of  nature.  "  The  second  general  duty 


VATTEL  497 

of  a  nation  towards  itself  is  to  labour  at  its  own  perfection  and 
that  of  its  state."  The  individual  citizen  must  also  strive  towards 
the  end.  Vattel  points  to  England  as  the  nation  that  has  realized 
his  ideals,  and  there  is  not  a  flicker  of  his  diplomatic  eye  as  he 
does  so.  Indeed  England,  England  in  her  eighteenth-century 
deadness  and  corruption,  is  to  him  Ja  standard  nation.  "  Heureuse 
constitution  !  a  laquelle  on  n'a  pu  parvenir  tout  d'un  coup  ;  qui  a 
coute,  il  est  vrai,  des  ruisseaux  de  sang,  mais  que  Ton  n'a  point 
achetee  trop  cher."  And  he  adds  with  a  touch,  one  is  tempted  to 
think,  of  irony  but  more  probably  in  sheer  earnestness,  "  Puisse  le 
luxe,  cette  peste  fatale  aux  vertus  males  et  patriotiques,  ce 
ministre  de  corruption  si  funeste  a  la  liberte,  ne  renverser  jamais 
un  monument  honorable  a  1'humanite,  monument  capable 
d'apprendre  aux  rois  combien  il  est  glorieux  de  commander  a  un 
peuple  libre."  The  praise  of  one's  friends  is  sometimes  hard  to 
bear.  The  second  chapter  of  the  First  Book  ends  with  a  sentiment 
that  goes  deep  indeed  into  the  heart  of  national  life  :  "  Une  nation 
doit  se  connaitre  elle-meme.  Sans  cette  connaissance,  elle  ne  peut 
travailler  avec  succes  a  sa  perfection."  How  few  nations  can  answer 
to  this  test !  Yet  it  is  this  self-knowledge  that  has  kept  the  Jewish 
nation  intact  through  two  millennia  of  national  misfortunes. 

The  sovereign  represents  the  nation.  "When  ...  a  people 
confer  the  sovereignty  on  any  one  person,  they  invest  him  with 
their  understanding  and  will,  and  make  over  to  him  their  obliga- 
tions and  rights,  so  far  as  relates  to  the  administration  of  the 
State,  and  the  exercise  of  public  authority.  The  sovereign,  or 
conductor  of  the  State,  thus  becoming  the  depositary  of  the 
obligations  and  rights  relative  to  government,  in  him  is  found  the 
moral  person,  who,  without  absolutely  ceasing  to  exist  in  the 
nation,  acts  thencef  or  wards  only  in  him  and  by  him."  Such  is 
the  origin  of  the  representative  character  attributed  to  the 
sovereign.  He  represents  the  nation  in  all  the  affairs  in  which 
he  may  happen  to  be  engaged  as  sovereign.  The  Prince  derives 
his  authority  from  the  nation  ;  he  possesses  just  so  much  of  it  as 
they  have  thought  proper  to  entrust  him  with.  He  must  respect 
and  support  the  fundamental  laws.  "  As  soon  as  a  Prince  attacks 
the  constitution  of  the  State,  he  breaks  the  contract  which  bound 
the  people  to  him  ;  the  people  become  free  by  the  act  of  the 
sovereign,  and  can  no  longer  view  him  but  as  an  usurper  who 
would  load  them  with  oppression."  Here  Vattel  adopts  the 
views  of  Grotius,  who  had  declared  that  "  France,  Spain  herself, 

33 


498  VATTEL 

England,  Sweden,  Denmark,  furnish  instances  of  kings  deposed 
by  their  people ;  so  that  there  are  at  present  few  sovereigns  in 
Europe  whose  right  to  the  crown  rests  on  any  other  foundation 
than  the  right  which  the  people  possesses  of  divesting  their 
sovereign  of  his  power  when  he  makes  an  ill  use  of  it." 

It  is  very  difficult,  at  any  rate  to  the  present  writer,  to  follow 
in  the  light  of  history  this  class  of  reasoning.  It  is  difficult  to 
say  more  in  the  light  of  instances  than  that  people  always  get 
rid  of  sovereigns  that  they  (with  good  or  bad  reason)  dislike  if 
they  have  an  organization  capable  of  securing  this  result.  If  the 
sovereign  is  an  able  man  he  usually  retains  his  seat.  And  con- 
versely, if  a  man  is  sufficiently  able  he  will  attain  the  sovereign 
power  in  fact, if  not  in  name, in  the  community  to  which  he  belongs. 
Vattel's  theory  of  the  origin  of  representative  kingship  leaves  out 
of  account  men  like  Caesar,  Cromwell,  and  Napoleon.  And  the 
doctrine  of  representation  is  scarcely  more  real  when  it  is  applied 
to  Parliamentary  Government,  though  of  course  the  swing  of  the 
pendulum  to  some  extent  secures  to  every  man  in  the  course  of 
a  long  life  some  rough  representation  of  his  political  notions 
What  in  fact  happens  is  that  sovereignty  tends  to  accommodate 
itself  to  a  line  of  government  that  encounters  the  least  resistance 
in  the  bulk  of  the  people  and  secures  the  most  stable  equilibrium  in 
the  State .  In  practice  rights  and  representation  have  little  meaning. 
In  England  a  Government  could  be  in  power  for  years  after  having 
been  elected  by  a  minority  of  the  persons  who  actually  voted. 

However,  sovereignty  is  and  must  be  a  fact  however  it  is  at- 
tained and  retained.  We  approach  a  more  practical  matter  when 
Vattel  proceeds  to  discuss  the  business  of  a  sovereign.  It  is  his 
(or  their)  business  to  procure  for  the  land  a  happy  plenty  of 
necessities.  For  this  there  must  be  a  sufficient  number  of  work- 
men. Emigration  should  therefore  be  forbidden.1  "  L'etat  doit 
encourager  le  travail,  animer  1'industrie,  exciter  les  talents, 
proposer  des  recompenses,  des  honneurs,  des  privileges,  faire  en 
sorte  que  chacun  trouve  a  vivre  de  son  travail."  The  sovereign 
ought  to  neglect  no  means  of  rendering  the  land  under  his  juris- 
diction as  well  cultivated  as  possible.  The  labours  of  agriculture 
should  be  held  in  honour.  Who  "  osent  mepriser  une  profession 
qui  trouvait  la  genre-humaine,  la  vocation  naturelle  de  I'homme  ?" 

1  It  may  be  noticed  here  that  this  view  has  been  from  time  to  time  favoured 
by  the  English  Courts,  which  has  never  repudiated  the  argument  that  emigra- 
tion is  against  public  policy.  See  Hingeston  v.  Sidney  [1908],  1  Ch.,  126,  488. 


VATTEL  499 

Vattel  even  advocates  the  establishment  of  granaries  as  an 
excellent  regulation  for  preventing  scarcity,  as  an  automatic 
regulation  of  prices.  From  agriculture  he  turns  to  commerce,  by 
which — • 

"  Les  particuliers  et  les  Nations  peuvent  se  procurer  les  choses 
dont  ils  ont  besoin  et  qu'ils  ne  trouvent  pas  chez  eux.  ...  Le 
commerce  interieur  est  d'une  grande  utilite  ;  il  fournit  a  tous 
les  citoyens  le  moyen  de  se  procurer  les  choses  dont  ils  ont  besoin, 
le  necessaire,  Futile  et  Fagreable  ;  il  fait  circuler  Fargent,  excite 
Findustrie,  anime  le  travail,  et,  dormant  la  subsistence  a  un  tres- 
grand  nombre  de  sujets,  il  contribue  a  rendre  le  pays  plus  peuple 
et  1'lStat  plus  puissant." 

Foreign  trade  has  two  additional  advantages :  it  gives  a  country 
things  she  cannot  herself  produce  and  it  may  augment  the  wealth 
of  a  nation,  and  Vattel  adds  with  respect  to  England,  "Au- 
jourd'hui  c'est  principalement  le  commerce  qui  met  en  sa  main 
la  balance  de  FEurope." 

The  laws  of  nature  with  respect  to  commerce  are  based  on  the 
duty  to  assist  and  make  others  perfect.  Every  one  has  an 
imperfect  right  to  purchase  what  he  wants  at  a  reasonable  price 
from  those  who  do  not  need  the  goods  in  question.  But  there  is 
no  such  right  to  compel  persons  to  buy,  since  everyone  is  at  liberty 
to  buy  or  not  to  buy.  This  clumsy  analysis  is  an  early  statement 
of  the  law  of  supply  and  demand,  obscured  of  course  by  the 
curious  doctrine  of  imperfect  obligation  by  which  Vattel  attempted 
to  clarify  his  juridical  ideas.  Everyone  is  willing  to  sell  what  he 
does  not  want  to  keep,  and  is  unwilling  to  sell  what  he  does  want 
to  keep  ;  while  everyone  is  willing  to  buy  what  he  needs  and  is 
unwilling  to  buy  what  he  does  not  need.  That  is  really  Vattel's 
position,  and  it  is  clearly  a  statement  of  the  law  of  supply  and 
demand.  But  Vattel  goes  on  to  justify  the  then  current  doctrine 
of  protection  on  the  ground  that  there  is  no  duty  to  buy,  though 
there  may  be  to  sell :  "  Tout  etat,  par  consequent,  est  en  droit  de 
defendre  Fentree  des  marchandises  etrangeres  ;  et  les  peuples 
que  cette  defense  interesse  n'ont  aucun  droit  de  s'en  plaindre, 
pas  meme  comme  si  on  leur  eut  refuse  un  office  d'humanite." 
We  may  seriously  doubt  if  Vattel's  premises  will  stand  the  strain 
of  this  argument.  His  earlier  argument  of  equal  and  reciprocal 
rights  and  duties  seems  inconsistent  with  a  policy  that  tends  to 
shut  a  nation  out  from  its  family  obligations.  However,  the 
jurist  feels  no  doubt  on  the  subject : 


600  VATTEL 

"  Comme  done  il  appartient  a  chaque  nation  de  voir  si  elle  veut 
exercer  le  commerce  avec  une  autre,  ou  si  elle  ne  le  veut  pas,  et 
a  quelles  conditions  elle  le  veut,  si  une  Nation  a  souffert  pendant 
quelques  temps  qu'une  autre  vint  commercer  dans  son  pays,  elle 
demeure  libre  d'interdire  quand  il  lui  plaira  ce  commerce,  de  le 
restreindre,  de  1'assujettlr  a  certaines  regies,  et  le  peuple  qui 
1'exercait  ne  peut  se  plaindre  qu'on  lui  fasse  uiie  injustice." 

This  no  doubt  is  an  excellent  statement  of  the  condition  of 
things  with  which  Vattel  the  diplomatist  had  to  deal,  but  to  derive 
or  attempt  to  derive  such  a  condition  from  the  laws  of  nature  as 
they  obtain  among  moral  beings  seems  more  interesting  than 
convincing.  Few  persons  can  doubt  that  protection  is  an  inter- 
ference, possibly  a  heaven-sent  interference,  with  the  laws  of 
nature,  with  the  law  of  supply  and  demand.  However,  Vattel 
was  desirous  of  discussing  commercial  treaties,  and  it  was  perhaps 
natural  to  justify  their  existence.  As  soon  as  a  Government  has 
provided  for  national  necessities  and  insured  plenty,  the  second 
purpose  of  its  being,  that  of  procuring  the  true  happiness  of  the 
nation,  comes  into  sight.  To  secure  national  happiness  the 
sovereign  must  instruct  and  enlighten  the  people.  The  education 
of  youth  is  one  of  the  most  important  matters  for  the  attention 
of  the  Government.  Vattel's  foresight  in  this  question  is  very 
remarkable.  He  foresaw,  indeed,  in  his  shrewd,  kindly  way  the 
whole  social  struggle  of  the  nineteenth  century.  He  was  not  to  be 
blinded  by  the  talk  of  the  sacredness  of  preserving  intact  the 
sense  of  parental  duty.  If  parents  are  unable  by  their  circum- 
stances to  fulfil  their  duties,  the  State  must  intervene  in  the 
interest  of  the  State.  "  II  ne  doit  point  s'en  reposer  entierement 
sur  les  peres."  But  the  Government  ought  not  to  stop  at  the 
education  of  the  individual.  It  ought  directly  to  encourage  arts 
and  sciences  and  freedom  of  philosophical  discussion.  It  ought 
to  make  every  effort  to  inspire  the  people  with  the  love  of  virtue 
and  the  abhorrence  of  vice  by  direct  example,  by  the  distribution 
of  favours,  by  the  banishment  of  whatever  is  corrupt.  Moreover 
it  should  inspire  the  people  with  patriotism.  State  railways  even 
are  foreshadowed  by  the  statement  that  the  maintenance  of 
highways  and  canals  is  the  business  of  the  sovereign  power. 
Vattel  carries  his  socialism,  as  some  people  would  call  it,  even  into 
the  realm  of  Religion  :  "  Une  Nation  doit  done  etre  pieuse." 
Religion,  in  so  far  as  it  is  an  external  matter,  is  an  affair  of  the 
State.  He  would,  of  course,  constrain  no  one  in  the  matter  of 


VATTEL  501 

religion.  Liberty  of  conscience,  he  tells  us,  is  a  natural  and 
inviolable  right.  But  a  citizen  must  not  openly  do  what  he  pleases 
without  regard  to  the  consequences  that  this  may  produce  in 
society.  It  belongs  to  the  nation  at  large  to  determine  what 
religion  she  would  follow  and  what  public  worship  she  thinks 
proper  to  establish.  If  necessary  she  can  establish  more  than  one 
religion  ;  but  if  a  particular  sect  is  too  small  to  demand  a  separate 
establishment,  the  dissenters  may  depart.  There  should,  how- 
ever, be  "  a  universal  toleration  of  all  religions  which  contain 
no  tenets  that  are  dangerous  either  to  morality  or  the  State." 
The  religion  of  the  Prince  himself  does  not  matter  so  long  as  he 
carries  out  the  behest  of  the  community.  Did  not  Joan  of 
Hochberg  remain  ruler  of  Neufchatel  after  that  principality 
adopted  the  Protestant  faith  ;  and  did  she  not,  though  still  a 
Catholic,  sign  and  sanction  the  ecclesiastical  laws  and  consti- 
tutions ?  Here  we  have  State  control  indeed  ;  a  State  with  rulers 
who  are  mere  conduit-pipes  of  the  popular  will.  Vattel  is  deter- 
mined that  the  State  shall  be  absolute  master  in  its  own  house.  He 
will  have  no  Papal  interference ;  no  appeals  to  Rome ;  nothing  that 
can  limit  in  any  fashion  whatever  the  perfect  freedom  of  the  com- 
munity. He  amply  justifies  his  position  with  elaborate  instances. 

Vattel  turns  from  Religion  to  Justice,  which  he  defines  as  the 
force  which  supports  the  laws  with  vigour  and  justly  applies  them 
to  every  case  that  presents  itself.  He  carries  justice  farther 
than  the  Courts.  He  insists  on  the  uses  of  distributive  justice- — 
the  treatment  in  society  of  everyone  according  to  his  deserts. 
This  principle  ought  to  regulate  the  distribution  of  public  employ- 
ment and  public  rewards.  His  discussion  of  the  right  of  punish- 
ment is  full  of  interest.  It  is  founded  on  the  right  of  personal 
safety,  the  right  to  provide  for  security  against  any  and  every 
attack.  When  men  unite  in  a  society  or  nation,  that  society  is 
charged  with  the  duty  of  providing  for  the  safety  of  its  members. 
In  this  way  the  right  of  private  war  is  merged  in  this  public  duty 
of  protection.  The  nation,  being  a  moral  person,  has  also  a  right 
to  provide  for  its  own  safety  by  punishing  those  who  trespass 
against  its  laws.  Thence  arose  both  civil  and  criminal  jurisdic- 
tion ;  the  avenging  both  of  private  and  public  offences.  The 
right  of  public  war  also  exists,  for  the  nation  must  protect  itself 
against  other  nations  as  well  as  against  individuals. 

This  leads  us  to  the  Third  Object  of  Government,  the  duty  to 
fortify  the  nation  against  external  attacks.  The  strength  of  a 


502  VATTEL 

nation  consists  in  the  number  of  its  citizens,  their  military  capa- 
city and  their  riches.  It  is  the  business  of  a  Government  to 
increase  these  three  sources  of  strength,  always  remembering  that 
"  la  puissance  d'une  nation  est  relative  ;  on  doit  la  mesurer  sur 
celle  de  ses  voisins,  ou  de  tous  les  peuples  dont  elle  peut  avoir 
quelque  chose  a  craindre." 

The  principle  that  lies  behind  all  modern  discussions  of  what  is 
known  as  the  two-power  standard  of  naval  strength  has  not  often 
been  stated  with  such  lucidity.  The  remaining  propositions  of 
the  book  hardly  call  for  notice  here,  though  much  might  be  written 
on  the  right  of  separation  from  a  nation,  on  the  doctrine  of 
effective  occupation,  and  on  the  right  of  Eminent  Domain,  the 
right  on  the  part  of  the  State  in  case  of  necessity  to  all  the  wealth 
within  the  State.  This  doctrine  is  of  course  a  natural  corollary 
of  the  duty  of  self-protection,  but  it  is  also  a  convenient  instru- 
ment in  the  hands  of  a  doctrinaire  socialist  or  a  Finance  Minister. 

I  do  not  propose  to  do  more  than  touch  upon  that  portion  of 
Vattel's  great  work  which  is  restricted  to  what  we  call  to-day 
International  Law.  The  field  in  one  sense  is  too  vast,  in  another 
too  restricted.  I  have  indicated  at  some  length  the  general 
principles  that  inspire  Vattel's  treatment  of  international  relation- 
ships, and  that  is  sufficient  for  my  general  purpose  since  I  was 
chiefly  anxious  to  consider  this  author  as  a  jurist  without  reference 
to  any  special  branch  of  law.  But  some  additional  reference  must 
be  made  to  his  first  principles  as  set  forth  in  his  Second  Book, 
which  treats  "  of  a  nation  considered  in  its  relation  to  others." 

Whatever  duties  each  man  owes  to  other  men,  the  same  does 
each  nation  in  its  way  owe  to  other  nations.  Therefore  one  State 
owes  to  another  State  whatever  it  owes  to  itself,  so  far  as  that 
other  stands  in  real  need  of  its  assistance,  and  the  former  can 
grant  it  without  neglecting  the  duties  that  it  owes  to  itself  : 
"  Telle  est  la  loi  eternelle  et  immuable  de  la  Nature."  Thus,  he 
points  out,  the  calamities  of  Portugal  arising  from  the  Lisbon 
earthquake  gave  England  an  opportunity  of  fulfilling  the  duties  of 
humanity  with  that  noble  generosity  which  characterizes  a  great 
nation.  But  one  nation  must  not  force  its  good  offices  on  another. 
Grotius  asserted  the  general  right  to  punish  infamous  behaviour 
by  other  nations,  but  Vattel  denies  this  unless  the  behaviour 
directly  affects  the  nation  desiring  to  intervene.  And  again,  you 
have  no  right  to  compel  another  nation  to  help  you.  But  the  law 
of  love  applies.  It  is  the  duty  of  nations  to  love  one  another.  In 


VATTEL  503 

all  this  there  is  much  that  is  interesting.  The  earthquake  at 
Messina  and  the  misconduct  of  the  Government  responsible  for 
the  Congo  horrors,  make  Vattel's  remarks  as  modern  as  may  be. 

Again  he  asserts  the  general  obligation  of  nations  to  trade  with 
each  other  and  he  advocates  the  utmost  freedom  of  trade,  though 
he  adds,  with  his  usual  caution,  that  each  nation  must  decide  if 
the  commerce  in  question  is  likely  to  be  useful  to  it.  He  then  lays 
down  the  rule  that  every  nation  is  entitled  to  security — namely, 
to  preserve  herself  from  all  injury  and  to  prevent  all  intervention 
or  interference  in  her  private  affairs.  He  is  careful,  however,  to 
point  out  that  the  occupation  of  a  nation  does  not  exclude 
absolutely  all  rights  of  other  nations  in  the  territory.  Everyone 
retains  the  right  to  obtain,  if  necessary,  not  only  food  and  ships 
and  other  goods  at  a  fair  price,  but  also  the  right  of  intermarriage 
in  order  to  secure  the  continuity  of  the  nation.  Women  for  this 
purpose,  he  adds,  may  be  carried  off.  It  is  in  this  book  that  the 
subject  of  treaties,  on  which  Vattel  was  the  greatest  living  ex- 
ponent in  his  age,  is  treated  at  length.  It  is  not  possible  to  deal 
with  his  special  branch  of  law  here,  but  Vattel's  treatment  of  it 
is  not  likely  to  be  forgotten.  His  advocacy  of  Arbitration  is 
likewise  of  very  real  importance,  and  may  be  of  more  value  in  the 
future  than  during  the  last  century  and  a  half. 

The  Third  Book  deals  with  War,  which  Vattel  defines  as  "  cet 
etat  dans  lequel  on  poursuit  son  droit  par  la  force."  Public  war 
is  carried  on  between  nations  ;  private  war  between  individuals. 
Private  war  comes  within  the  law  of  nature.  Nature  gives  men  a 
right  to  employ  force  when  it  is  necessary  for  their  defence,  and 
for  the  preservation  of  their  rights.  But  as  we  have  seen,  society 
takes  upon  itself  this  duty  and  so  has,  for  the  time  being,  ex- 
tinguished the  right  of  private  war.  Thus  the  sovereign  power 
alone  has  the  right  to  make  war.  For  this  purpose  he  has  the  right 
to  raise  troops,  and  every  citizen  is  bound  to  serve  and  defend  the 
State  so  far  as  he  is  capable.  No  person  is  naturally  exempt  from 
taking  up  arms  in  defence  of  the  State.  But  war  must  be  just. 
The  right  of  making  war  belongs  to  nations  only  as  a  remedy 
against  injustice.  Here  once  more  Vattel  gives  us  the  ideal  for 
the  real.  He  knew  well  enough  that  wars  on  behalf  of  right  and 
justice  have  been  rare  enough.  He  tells  us  of  no  remedy  against 
unjust  war.  The  only  remedy  is  that  great  Republic  of  which 
Wolff  dreamed  and  which  to-day  is  again  in  the  minds  of  men. 
But  so  insistent  is  Vattel  on  the  necessity  of  maintaining  peace 


504  VATTEL 

that  he  insists  on  the  necessity  of  a  formal  declaration  of  war — 
a  Res  Poenitentice,  so  to  speak. 

It  is  noticeable  that  this  jurist  gives  us  no  lengthy  discussion 
of  the  vexed  problems  of  neutrality.  His  definition  of  contraband 
is,  however,  of  real  value  :  "  les  choses  qui  sont  d'un  usage 
particulier  pour  la  guerre,  et  dont  on  empeche  le  transport  chez 
1'ennemi,  s'appellent  marchandises  de  contrebande."  He  goes  on 
to  deal  with  the  rights  of  nations  in  war  forbidding  assassination 
and  the  use  of  poison  ;  with  faith  between  enemies,  acquisition  by 
war,  the  right  of  postliminium,  the  rights  of  private  persons  in 
war  ;  and,  lastly,  convention  in  war. 

The  Fourth  and  last  book  deals  with  the  Restoration  of  Peace 
and  Embassies.  The  question  of  the  asylum  offered  by  an 
ambassador's  house  is  discussed  with  care. 

Le  Droit  des  Gens  is  certainly  a  work  of  the  first  magnitude.  It 
modernized  the  whole  theory  and  business  of  International  Law, 
brought  it  out  of  the  study  into  the  field,  the  mart,  the  council 
chamber,  and  the  palace.  The  law  of  nations  was  no  longer  a 
mystery.  One  of  its  most  brilliant  practical  exponents  became 
its  popularizer.  He  did,  indeed,  much  for  nations,  for  he  imposed 
upon  them  theories  of  moral  rational  development  up  to  which  it 
became,  in  a  sense,  necessary  for  them  to  live.  I  have  ventured 
here  and  there  in  this  paper  to  criticize  Vattel's  premises,  methods, 
and  conclusions,  and  even  to  say  that  the  ideals  which  he  placed 
before  the  nations  of  the  world,  high  though  they  are,  might 
possibly  have  been  higher.  Certainly  it  appears  to  me  that  Wolff 
was  by  far  the  greater  thinker  of  the  two,  and  no  doubt  Vattel 
himself  would  have  admitted  this.  But,  on  the  other  hand,  Vattel 
was  a  practical  man,  and  he  brought  Wolff's  doctrines,  with 
certain  modifications,  into  the  domain  of  practical  life.  To  have 
done  this  was  in  itself  an  achievement  that  will  immortalize  his 
name.  But  Vattel  was  far  more  than  a  practical  man.  He  was  a 
thinker  of  great  distinction  and  of  great  honesty,  and  he  possessed 
what  few  thinkers  of  that  age  possessed,  a  profound  religious  faith. 
If  he  has  no  other  lesson  for  our  age  he  has  this :  that  the  limits  of 
human  speculation  are  narrow  while  the  range  of  faith  is  infinite, 
and  that  man  may  choose  the  range  of  faith  with  perfect  reason- 
ableness for  the  purpose  of  determining  his  conduct.  The  logical 
structure  of  human  society  stands  within  a  larger  and  nobler  house. 
But  Vattel  had,  as  we  know,  much  else  to  teach,  and  the  amity  of 
nations  to-day  owes  many  things  to  the  Diplomatist  of  Neufchatel. 


CAESAR   BONESANA,    MARQUIS   DI   BECCARIA 


C^ESAB  BONESANA,  MARQUIS  DI  BECCARIA 

THIS  eminent  Italian  Jurist,  descended  from  an  ancient  family, 
was  born,  1735,  at  Milan,  and  died  in  that  city,  1794.  Educated 
by  the  Jesuits  of  Parma,  he  was  one  of  the  first  members  of  a 
literary  society  which  was  formed  in  Milan  on  the  model  of  that 
of  Helvetius,  his  elder  by  twenty  years. 

Beccaria  published  a  journal  II  Gaffe,  or  Le  Cafe,  about  1763, 
after  the  manner  of  The  Spectator,  by  Addison,  jointly  with  the 
distinguished  brothers  Peter  Verri,  statesman  and  author,  and 
Count  Alexander  Verri,  barrister  and  historian,  both  Milanese 
of  the  same  perod. 

The  object  of  this  Journal  was  to  spread  new  ideas  in  Italy. 
The  writing  of  these  ideas  led  Beccaria  to  see  the  iniquities  of  the 
criminal  justice  of  his  day,  and  by  the  advice  of  the  brothers 
Verri,  he  was  persuaded  to  write  his  famous  treatise  Dei  Delitti  e 
dette  Pene.  This  book  was  commenced  1763  and  was  published 
1764.  It  was  translated  into  several  languages  and  universally 
admired — into  French  (1766)  under  the  name  of  Des  Delits  et 
des  Peines,  with  a  commentary  attributed  to  Voltaire,  and  into 
English  (1676)  under  the  title  of  An  Essay  on  Crimes  and  Punish- 
ments. 

The  author  of  this  celebrated  work  was  not  at  the  tune  quite 
twenty-seven  years  of  age.  Many  times  he  nearly  abandoned  his 
undertaking,  for  he  was  easily  discouraged,  being  of  a  lethargic 
and  nervous  temperament.  "I  owe  all,"  he  said,  "to  French 
books  ;  they  have  developed  in  my  soul  the  feeling  for  humanity 
previously  filled  with  eight  years  of  fanatical  education."  He 
frequently  quoted  those  authors  which  were  to  him  the  most 
familiar,  D'Alembert,  Diderot,  Buffon,  Hume,  Condillac,  Montes- 
quieu, Helvetius.  "Their  immortal  works  were  my  continual 
reading,  the  object  of  my  preoccupation  during  the  day  and  of 
my  meditation  during  the  night."  The  work  of  Helvetius, 
L'Esprit,  or  The  Mind  (wherein  it  was  suggested  that  virtue  and 

505 


506  CJESAR  BONESANA,   MARQUIS  DI  BECCAB1A 

vice  chiefly  depended  on  climate),  awoke  his  attention  to  all  the 
blindness  and  misery  of  humanity. 

After  the  completion  of  his  writings  he  feared  to  publish  them. 
Notwithstanding  the  protection  he  had  under  the  administra- 
tion of  Comte  Firmiani,  he  secretly  published  them  in  Livourne. 
In  1764  he  wrote  to  Pierre  Verri :  "If  our  friendship  had  not 
sustained  me,  I  should  have  abandoned  my  project,  for  by  in- 
clination I  prefer  obscurity."  He  feared  persecution,  and  often 
veiled  his  thoughts  hi  vague,  uncertain  expressions. 

His  reply  to  L'Abbe  Morellet,  who  reproached  him  for  obscurity 
in  some  of  his  passages,  was  :  "  I  ought  to  tell  you  that  I  have  had 
before  me  whilst  writing  the  example  of  Machiavel,  of  Galileo, 
and  Giannone.  I  have  heard  the  clank  of  the  chains  of  super- 
stition and  fanaticism  stifling  the  cry  of  truth,  and  the  sight  of 
this  startling  spectacle  determined  me  to  envelop  the  light  in 
cloud.  I  wish  to  defend  the  cause  of  humanity  without  being  a 
martyr." 

The  Essay  on  Crimes  and  Punishments  appeared  as  the  outcome 
of  his  study  of  French  philosophy,  of  French  rationalism,  as 
bearing  on  existing  penal  legislation.  It  invoked  juridical  tradi- 
tion, reason,  and  sentiment.  It  eloquently  interpreted  the  pro- 
testations of  the  public  conscience  against  secret  procedure ; 
against  the  oath  imposed  on  the  accused  ;  against  confiscation, 
infamous  punishments  :  their  inequality,  and  the  atrocity  of 
torture.  It  separated  clearly  divine  justice  from  human  justice, 
crimes  from  sins,  repudiated  the  right  of  vengeance,  assigned 
rightly  the  basis  of  punishment  for  general  use,  declared  the 
punishment  of  death  useless,  demanded  the  proper  proportion  of 
punishments  to  crimes  and  the  separation  of  judicial  power  from 
that  of  legislative  power.  Never  did  a  book  appear  at  a  more 
opportune  time.  It  had  an  extraordinary  success  ;  it  was  an 
event ;  in  eighteen  months  from  publication  it  passed  through 
six  editions  ;  in  a  few  years  through  thirty-two  Italian  editions  ; 
four  editions  of  the  English  translation  were  issued,  and  it  was 
translated  into  most  European  languages.  The  French  philo- 
sophers welcomed  it  with  enthusiasm,  as  the  result  and  to  the 
honour  of  their  doctrines.  L'Abbe  Morellet  translated  it ; 
Diderot  annotated  it ;  Voltaire  commentated  it.  It  was  applauded 
by  D'Alembert,  Buffon,  Helvetius,  Baron  d'Holbach  and  all  the 
dmes  sensibles.  Perhaps  no  book  of  the  kind  was  ever  received 
with  more  avidity,  more  generally  read,  or  more  universally 


CJESAR  BONESANA,  MARQUIS  DI  BECCARIA  507 

applauded.  There  was  also  published  a  commentary,  attributed 
to  Voltaire.  There  is  no  evidence  of  this  being  Voltaire's  except 
that  of  public  opinion. 

In  1766  Beccaria  went  to  Paris  and  was  received  everywhere 
with  the  most  lively  admiration  and  sympathies,  con  adwazione, 
says  Alexander  Verri,  who  accompanied  him.  The  visit  lasted 
only  a  few  weeks.  Happily  married  to  a  wife  he  adored,  and 
whom  he  left  at  Milan,  he  could  not  live  away  from  her,  con- 
stantly writing  to  her,  expressing  his  sorrow  at  not  seeing  her, 
and  inconsolable  at  leaving  her.  "  Souviens-toi,"  he  wrote  to 
her,  "whom  I  prefer  to  all  Paris,  the  most  attractive  place  in 
the  world.  My  wife,  my  children,  and  my  friends  fill,  without 
ceasing,  my  thoughts.  Imagination,  the  despot  of  my  life,  leaves 
me  to  enjoy  neither  the  spectacles  of  nature  nor  those  of  art, 
which  are  not  wanting  in  this  journey  and  in  this  beautiful  city." 

Returning  to  Milan,  he  never  again  left  that  city.  His  life 
flowed  on,  as  he  said,  peacefully  and  in  solitude.  ("  lo  meno  una 
vita  tranquilla  e  solitaria.")  Some  passages  in  his  book  which 
touched  on  religion  disturbed  him,  but  no  denunciation  followed. 
"  Le  Comte  Firmiani,"  he  wrote  to  L'Abbe  Morellet,  "  protected 
my  book,  and  it  is  to  him  that  I  owe  my  tranquillity."  He  was 
far  from  being  insensible  to  glory ;  he  recognized  that  a  literary 
reputation,  liberty  for  himself,  and  a  compassion  for  the  misfor- 
tunes of  mankind,  were  in  him  three  sentiments  equally  alive,  but 
he  wished  for  a  glory  which  would  not  disturb  him  or  require  him 
to  sacrifice  the  repose  and  the  happiness  of  his  private  life.  His 
enthusiasm  for  reform  fell  short  before  this  peril,  and  he  wisely 
conciliated  the  established  power. 

In  1768  the  Austrian  Government,  hearing  that  Beccaria  had 
refused  the  offer  of  Catherine  II.  to  live  in  St.  Petersburg,  created 
in  his  favour,  at  Milan,  a  chair  of  political  economy.  He  was 
induced  by  this  honour  conferred  on  him  to  publish  some  work 
upon  this  subject.  He  had  the  satisfaction  in  seeing  during  his 
life  the  introduction  into  legislation  of  the  principles  that  he  had 
proclaimed.  He  took  part  in  1791  in  the  Milanese  Commission 
instituted  for  the  reform  of  civil  and  criminal  procedure. 

L'Abbe  Morellet,  the  translator  of  Beccaria's  great  work,  said 
that  its  author  was  actuated  by  true  sentiment,  love  of  literary 
fame,  love  of  liberty,  and  compassion  for  the  unhappy  condition 
of  mankind  enslaved  by  so  many  errors.  "  Beccaria,"  said  M. 
Villemain,  "had  a  sensible  and  generous  heart,  rather  than  a 


508  CvESAR  BONESANA,   MABQUIS   DI   BECCAEIA 

far-seeing  mind  ;  a  man  full  of  ideas.  One  owes  to  the  author  of 
The  Essay  on  Crimes  and  Punishments  an  everlasting  recognition, 
though  his  work  could  not  be  considered  as  that  of  a  genius." 

"  Beccaria,"  said  M.  Mougin  (Encyclopedic  Nouvelle),  "  was 
never  a  thinker.  He  was  confused  by  an  equal  admiration  for 
two  different  men,  Helvetius  and  Montesquieu.  Between  these 
two  different  men,  he  himself  (their  pupil)  said  he  could  see  no 
distinction — to  him  they  were  both  philosophers.  In  these  two 
lives  he  only  saw  their  feeling  for  humanity  and  a  tenderness  for 
every  one.  He  could  not  fathom  their  assertions,  often  diverse 
and  contradictory,  either  in  the  germ  or  developing.  His  work 
was  not  one  of  original  thought,  of  learned  and  profound  thought, 
which  one  expects  to  find  in  Beccaria." 

"  The  age  in  which  Beccaria  wrote,"  said  M.  Leminier,  "  was 
one  in  which  the  rights  of  humanity  (before  ignored  and  violated) 
were  suddenly  and  quickly  sought  to  be  established.  The  science 
of  criminal  law  was  without  scientific  character,  and  met  with 
general  opposition.  It  was  a  period  when,  in  the  pursuit  of 
such  a  reform,  talent  was  genius,  and  courage  was  talent — one 
who  took  the  lead  was  certain  to  receive  the  esteem  and  admira- 
tion of  his  contemporaries.  Beccaria  published  his  Essay  on 
Crimes  and  Punishments  not  as  a  scientific  work,  but  as  a  zealous 
pamphlet,  which  showed  the  enthusiasm  of  his  opinions." 

Another  writer  says  :  "  These  appreciations  do  not  seem  to 
render  sufficient  justice  to  Beccaria.  All  the  world  now  recog- 
nizes that  Beccaria  took  up  the  reform  of  penal  legislation,  which 
he  pleaded  with  a  luminous  reason,  an  eloquent  passion,  and  won 
almost  immediately  an  honour  no  one  could  share  with  him. 
The  rapidity  of  his  success  seemed  to  diminish  his  merit.  It  was 
at  the  same  time  his  good-fortune  to  formulate  the  sentence 
pronounced  at  a  later  period,  by  the  public  opinion  of  all  Europe 
against  existing  judicial  institutions."  Is  that  the  idea  we  ought 
to  have  of  Beccaria  ?  Has  his  book  only  been  negative,  or 
destructive,  or  revolutionary  ?  Ought  one  to  consider  his 
Essay  as  a  mere  pamphlet,  that  is  to  say,  a  mere  incident  ? 
It  is  a  work  in  all  the  acceptance  of  the  word.  For  Beccaria  was 
not  born  to  destroy  the  ancient  edifice  of  a  legislation  previously 
so  odious.  He  dug  the  foundations  of  a  new  edifice,  he  fashioned 
the  material,  he  traced  the  plan.  The  Essay  on  Crimes  and 
Punishments  is  one  of  the  books  of  the  eighteenth  century  from 
which  one  can  even  at  this  day  draw  some  lessons.  One  must 


CJESAR  BONES  ANA,   MARQUIS   DI  BECCARIA  509 

not  forget  that  Beccaria  was  the  first  publicist  to  question  the 
law  as  to  the  punishments  of  death.  His  name  will  ever  be 
associated  with  the  idea  of  the  suppression  of  the  scaffold. 
Whatever  objection  there  may  be  to  this  idea,  one  must  always 
recognize  that  Beccaria  was  brave  and  original  enough  to  pro- 
claim— in  the  face  of  legislators  who  maintained  a  vigorous  belief 
to  the  contrary,  and  of  philosophers  who  justified  it,  and  of  all 
history,  which  proved  that  the  punishment  of  death  was  applied 
everywhere  and  at  all  times — that  this  punishment  exceeded 
the  right  of  the  legislator  and  the  Judge  ;  in  one  word,  he  denied 
their  right,  in  the  name  of  the  human  heart — that  source  of  all 
great  thoughts  (according  to  Vauvenargues)  of  the  past,  of  the 
present,  and  until  cold  reason  appears  to  repress  it,  also  of  the 
future. 

After  this  is  it  true  to  say  that  societies  for  the  promotion  of 
that  principle  and  the  social  philosophy  of  the  eighteenth  century 
owe  nothing  to  Beccaria  ?  Was  he  not,  as  he  said  of  himself, 
in  the  track  of  the  French  philosophers  ?  He  did  not  work  his 
thoughts  in  new  ways,  he  worked  upon  the  lines  of  the  old  masters. 
He  accepted  without  dispute  the  "  contrat  social "  of  Kousseau. 
He  supposed,  like  Rousseau  (and  by  so  doing  followed  in  the  same 
stream  of  ideas  where  Rousseau  and  Helvetius  had  given  him 
the  lead),  that  this  contract  was  founded  on  social  grounds, 
derived  from  a  common  want,  a  common  interest.  Like  Voltaire, 
Beccaria  saw  in  the  religious  institutions  of  humanity  nothing 
but  the  politics  of  legislators,  the  work  of  daring  men,  which 
deceived  others,  who,  like  themselves,  trained  the  ignorant  to 
follow  in  their  steps." 

Another  writer  says  :  "  When  the  Essay  appeared,  Beccaria 
was  stamped  with  that  immortality  which  belongs  only  to  geniuses, 
born  to  be  benefactors  of  their  times.  Quique  sui  memores  olios 
fecere  merendo.  Never  before  did  so  small  a  book  produce  so  great 
an  effect.  Never  were  truths  so  consoling  and  sacred  compressed 
into  so  small  a  space.  Innocence  and  justice,  human  liberty 
and  social  peace  were  shown  to  the  world  welded  into  one  in- 
dissoluble link.  The  origin,  the  basis,  and  the  limits  of  the  right 
to  punish  were  presented  in  such  a  manner  impossible  to  be 
ignored.  The  legislator  knew  that  he  should  not  pronounce 
judgment,  and  the  Judge  that  he  should  only  interpret  the  laws." 

Dumont  wrote  in  1811  :  "  Beccaria  first  examined  the  efficacy 
of   punishments   by   considering  their  effect  upon  the  human 


510  O3ESAR  BONESANA,  MARQUIS  DI  BECCARIA 

heart ;  by  calculating  the  force  of  the  motives  by  which  individuals 
are  impelled  to  the  commission  of  crimes,  and  of  those  opposite 
motives  which  the  law  ought  to  present.  This  species  of 
analytical  merit  was,  however,  less  the  cause  of  his  great  success 
than  the  courage  with  which  he  attacked  established  errors,  and 
that  eloquent  humanity  which  spreads  so  lively  an  interest  over 
his  work  ";  after  this,  says  M.  Lunefont,  "  I  scruple  to  say  that 
he  is  destitute  of  method,  that  he  is  not  directed  by  any  general 
principle,  that  he  only  glances  at  the  most  important  questions, 
that  he  carefully  shows  all  practical  discussions  in  which  it  would 
have  been  evident  that  he  was  acquainted  with  the  science  of 
jurisprudence.  He  announces  two  distinct  objects  :  Crimes  and 
Punishments  ;  he  adds  to  these  occasionally  Procedure  ;  and  these 
three  vast  subjects  with  difficulty  furnish  matter  for  one  little 
volume." 

The  editions  of  this  work,  not  more  than  two  hundred  pages, 
including  the  commentary  attributed  to  Voltaire,  multiplied 
rapidly.  In  Italy  three  editions  were  sold  in  the  first  six  months, 
and  three  more  the  following  year.  It  was  translated  into  French 
(1766)  at  the  instance  of  Malesherbes,  by  L'Abbe  Morellet,  who 
brought  into  this  work  his  passionate  interest  for  human  misery, 
and  arranged  the  different  parts  of  this  fine  work  in  an  order  he 
judged  suitable,  and  approved  by  Beccaria. 

M.  Challon  de  Lisy  published  a  second  translation,  and  in  1797 
a  second  edition  of  Morellet's  translation  appeared  with  notes  by 
Diderot,  together  with  St.  Aubin's  translation  of  Bentham's 
Theory  of  Penal  Law.  In  Prussia,  in  Russia,  and  in  Tuscany, 
the  sovereign  and  the  people  honoured  the  man  who  was  at  the 
time  the  defender  of  the  safety  of  subjects  and  of  the  stability 
of  Governments.  Catherine  II.  of  Russia  had  the  Essay 
translated  and  inserted  among  her  new  Code  of  laws,  abolished 
torture  in  her  dominions,  and  accompanied  the  abolition  by  an 
edict  of  toleration.  Frederick  of  Prussia  and  Duke  Leopold  of 
Tuscany  took  the  same  step.  The  movement  that  destroyed 
torture  was  an  emotional  one  rather  than  an  intellectual  one. 
Joseph  II.  of  Austria  soon  after  abolished,  with  few  exceptions, 
the  punishment  of  death  throughout  his  dominions.  The  ad- 
ministration of  Berne  ordered  a  medal  to  be  coined  in  Beccaria's 
honour.  Coray  translated  the  Essay  into  Greek  and  pub- 
lished it  in  1802.  Lord  Mansfield,  it  is  said,  never  pronounced 
the  name  of  Beccaria  without  a  visible  sign  of  respect.  So  great  a 


(LESAR  BONESANA,  MAEQUIS  DI  BECCARIA  511 

success,  even  though  it  was  in  the  interests  of  humanity,  was  not 
exempt  from  attacks  of  envy  and  fanaticism.  These  attacks 
were  brought  against  him  in  Milan,  accusations  of  impiety  and 
sedition.  The  powerful  influence  of  Count  Firmiani  alone  pro- 
tected him,  declaring  that  the  author  and  his  work  were  under 
his  protection,  he  had  created  for  him  in  Milan  the  chair  of  political 
economy,  and  when  it  was  established  Beccaria  endeavoured  to 
teach  those  who  had  formerly  planned  his  ruin.  Beccaria's  other 
important  works  were  :  On  the  Disorder  of  Money  in  the  State  of 
Milan  and  the  Means  of  Remedying  it  (1792),  Researches  upon 
the  Nature  of  Style  (1765),  an  ingenious  reflection  upon  the  forma- 
tion of  languages — where  the  author  alluded  to  two  principles — 
the  expression  of  pleasure  and  of  sorrow  and  the  imitation  of 
objects.  It 'was  printed  in  his  Journal  Le  Cafe  and  translated 
(1771)  by  L'Abbe  Morellet ;  Discourse  upon  Commerce  and 
Public  Administration  (1769),  translated  by  Antoine  Comparet ; 
Report  upon  a  Project  of  Uniformity  of  Weights  and  Measures 
(1781). 

A  hundred  years  after  the  publication  of  the  Essay  on  Crimes 
and  Punishment,  Caesar  Cantii,  a  learned  Milanese  historian,  pub- 
lished a  work  called  An  Essay  on  Beccaria  and  the  Penal  Law. 
This  work  appeared  in  Italian  in  Florence  in  1862.  In  this  long 
and  complete  monograph  Cantu  first  examined  the  earlier  state 
of  penal  legislation  before  the  time  of  Beccaria — the  prisoner,  his 
punishments  in  Italy,  and  especially  among  the  Milanese  at  that 
period — and  of  torture  previous  to  and  since  the  Christian  era. 
He  cited  the  most  important  Roman  authorities  upon  penal  law 
and  torture,  and  mentioned  the  most  ancient  works  which  he 
had  read  on  the  applications  of  that  punishment.  He  cited  the 
work  of  Martin  Bernard,  which  reverted  to  the  early  times  of 
Christianity,  La  Tortura  ex  foris  Christianorum  proscribenda,  and 
a  jurisconsult  Groevius  who,  before  Beccaria,  had  shown  their 
iniquity.  The  authors  he  cited  in  this  work  are  innumerable. 
There  is  not  a  criminologist  of  the  least  distinction  whom  he  did 
not  bring  to  light.  Cantu,  after  he  had  written  the  history  of 
Beccaria's  great  work,  demonstrated  the  doctrines  of  the  Ency- 
clopedistes,  the  social  contract,  the  system  which  gave  society 
the  right  to  defend  itself,  which  forms  the  basis  of  law,  and  the 
foundation  of  punishment. 

Passing  from  the  theoretical  to  the  practical,  Cantu  reviewed 
and  criticized  the  reforms  which  were  accomplished  under  the 


512  CJESAR  BONESANA,    MARQUIS   DI   BECCARIA 

influence  of  Beccaria's  book,  and,  approaching  the  theories  and 
modern  application  of  the  criminal  law,  he  appreciated  with  a 
profound  suggestion  the  juridical  strength  and  philosophy  of 
Beccaria's  work.  In  his  appreciations  of  the  law  of  punishment, 
Cantii  was  inspired  by  some  clearer  principle,  and  criticized  the 
theories  of  Beccaria  founded  upon  the  system  of  the  origin  of 
society,  such  as  were  conceived  by  the  philosophers  of  that  period. 
He  reproached  Beccaria  for  resisting  the  interpretation  of  the 
law,  enumerating  the  cases  where  this  interpretation  was  perhaps 
useful  and  necessary,  noting  at  the  same  time  the  economical 
errors  of  Beccaria.  He  nevertheless  assigned  him  his  true  place 
in  the  reform  of  criminal  jurisprudence,  and  concluded  that  if 
Beccaria  was  not  quite  the  first  to  demand  reform,  the  glory  of 
accomplishment  was  at  least  his  alone.  In  a  word,  Cantu  admires 
and  criticizes  at  the  same  time. 

Beccaria's  work  was  not  intended  to  be  a  complete  system  of 
penal  law ;  it  was  mainly  directed  against  the  most  flagrant 
errors  and  abuses  of  contemporaneous  legislation,  particularly 
against  torture  and  the  punishment  of  death.  These  two 
forms  of  punishment  previous  to  the  days  of  Beccaria  were 
the  chief  and  largely  the  only  forms  of  punishment.  Two 
of  his  objections  to  the  punishment  of  death  were — that  as  a 
deterring  example  execution  lasts  so  short  a  time,  whereas  per- 
petual slavery  (his  mode  of  punishment  for  the  greatest  crime) 
affords  a  more  lasting  example,  and  that  capital  punishment  is 
too  great  an  example  of  barbarity.  "If,"  he  wrote,  " the  pas- 
sions or  necessity  of  wars  have  taught  men  to  shed  the  blood  of 
their  fellow-creatures,  the  laws  which  are  intended  to  moderate  the 
ferocity  of  mankind  should  not  increase  it  by  the  example  of 
barbarity,  the  more  horrible,  as  this  punishment  is  usually 
attended  with  formal  pageantry."  It  was  to  his  impressive  style, 
his  lively  eloquence,  that  the  author  of  the  famous  Essay 
owed  his  success,  and  the  diffusion  of  his  principles  to  the  animated 
style  in  which  he  appealed  to  the  feelings  of  mankind. 

Bentham,  writes  Mr.  C.  M.  Atkinson,  followed  Beccaria,  and 
denounced,  as  a  false  principle  that  had  long  reigned  a  tyrant 
throughout  the  best  province  of  penal  law,  this  "  reasoning  by 
antipathy,"  as  he  phrased  it ;  for  it  is  but  an  irrational  subjection 
to  the  blind  impulses  of  anger  and  revenge  which  have  in  all  ages 
obscured  the  vision  of  judges  and  legislators. 

Bentham  (1747-1832)  was  a  contemporary  of  Beccaria,  who  is 


CLESAR   BONESANA,  MARQUIS   DI   BECCARIA  513 

said  to  have  stated  during  different  periods  of  his  life  that  he 
took  the  "  Greatest  Happiness  "  principle  from  Hume,  Montes- 
quieu, Barrington,  Beccaria,  and  Helvetius.  Bentham  had  noted 
in  his  commonplace  book  that  Priestley  was  the  first  (unless  it 
was  Beccaria)  who  taught  his  lips  to  pronounce  the  sacred  truth 
that  "  the  greatest  happiness  of  the  greatest  number  is  the  founda- 
of  morals  and  legislation."1 

According  to  M.  Halevy,  Beccaria  sketched  the  ideas  in  out- 
line, but  did  not  approach  Bentham  either  in  vigorous  definition 
of  the  principles  or  in  the  systematic  development  of  their  far- 
reaching  consequences.  Bentham,  says  Professor  Montague, 
grasped  with  astonishing  firmness  axioms  which  Beccaria  had 
merely  indicated  with  the  light  touch  of  an  essayist. 

W.  E.  H.  Lecky,  reviewing  the  effect  of  Beccaria's  work  upon 
torture,  says  :2  "In  Italy,  the  great  opponent  of  torture  was 
Beccaria.  The  movement  that  destroyed  torture  was  much  less 
an  intellectual  than  an  emotional  movement.  It  represented 
much  less  a  discovery  of  the  reason  than  an  increased  intensity 
of  sympathy.  There  is  perhaps  one  exception  to  this.  Beccaria 
grounded  much  of  his  reasoning  on  the  doctrine  of  the  Social 
Compact.  I  cannot,  however,  think  that  this  argument  had 
much  influence  in  producing  the  change."  Reviewing  its  effect 
on  the  Penal  Code  he  says  :3  "  The  reform  in  England,  as  over  the 
rest  of  Europe,  may  be  ultimately  traced  to  that  Voltairian  School 
of  which  Beccaria  was  the  representative,  for  the  impulse  created 
by  the  treatise  On  Crimes  and  Punishments  was  universal,  and 
it  was  the  first  great  effort  to  infuse  a  spirit  of  philanthropy 
into  the  Penal  Code,  making  it  a  main  object  of  legislation  to 
inflict  the  smallest  possible  amount  of  suffering.  Beccaria  is 
especially  identified  with  the  cause  of  the  abolition  of  capital 
punishment,  which  is  slowly  but  steadily  advancing  towards  its 
inevitable  triumph.  In  England  the  philosophic  element  of  the 
movement  was  nobly  represented  by  Bentham,  who,  in  genius, 
was  certainly  superior  to  Beccaria,  and  whose  influence,  though 
perhaps  not  so  great,  was  also  European." 

Howard  the  philanthropist  (1726-1790),  also  a  contemporary  of 
Beccaria  and  Bentham,  advocated  the  abolition  of  capital  punish- 
ment. Howard's  pilgrimages  to  improve  the  prisons  of  Europe 

1  Bentham,  his  Life  and  Work,  by  C.  M.  Atkinson,  pp.  30,  31,  36,  160,  161. 

2  Rationalism  in  Europe,  vol.  i.,  p.  331. 

3  Ibid.,  p.  349. 

34 


514 

and  Bentliam's  writings  added  to  and  aided  the  great  objective 
principle  laid  down  by  Beccaria. 

Before  concluding  this  article  it  may  be  interesting  shortly  to 
review  as  far  as  possible  the  effect  of  Beccaria's  small  but  far- 
reaching  literary  work  relating  to  the  two  great  principles  he 
laid  down.  As  regards  torture,  as  meant  and  understood  by 
Beccaria,  it  may  be  said  to  have  entirely  disappeared,  so  far  as 
Occidental  countries  are  concerned.  Capital  punishment  still 
remains,  but  in  a  greatly  modified  degree  since  the  days  of 
Bsccaria. 

Filangieri  (1752-1788),  a  Neapolitan  barrister,  also  a  contem- 
porary of  Beccaria,  published  in  1782  his  great  theoretical  work 
the  Scienza  detta  Legislazione,  and  carried  into  effect  a  general 
reform  in  the  legislation  of  his  country.  This  work  went  through 
many  editions,  translated  and  published  in  Germany,  France, 
Spain,  and  America.  Filangieri  does  not  advocate  the  total 
abolition  of  capital  punishment,  but  limits  the  infliction  of  death 
to  a  few  crimes,  viz.,  murder  with  intent  after  cold-blooded 
deliberation  (a  sangue  freddo),  treason,  and  high  treason.  The 
immediate  effect  of  Beccaria's  teaching  was  first  to  be  found  in 
his  own  country.  The  first  Government  to  be  impressed  with 
Beccaria's  views  was  that  of  Tuscany. 

The  Grand  Duke  Leopold  abolished  the  punishment  of  death 
(1786).  The  preamble  of  his  Act  asserts  that  it  had  not  been 
inflicted  in  Tuscany  for  fourteen  years  before  (1772),  Beccaria's 
essay  having  been  published  (1764).  In  Germany — the  Germany 
of  the  eighteenth  century — the  first  example  was  set  in  Austria. 
The  death  sentence  could  not  be  passed  without  the  special  man- 
date of  the  Emperor  Joseph  II.  (1781).  It  was  actually  abolished 
( 1 787).  It  was  limited  in  Prussia  ( 1 788).  In  Bavaria,  Feuerbach, 
the  author  of  its  Code,  following  his  own  penal  theory,  considered 
that  the  temptation  to  the  grossest  crime  ought  to  be  checked 
by  a  death  penalty. 

In  France  Beccaria's  ideas  were  received  with  approval  before 
the  Revolution  (1790),  and  it  was  moved  in  the  National  Assembly 
that  except  in  political  subjects  the  death  penalty  should  be 
abolished.  Robespierre  spoke  in  favour  of  its  abolition.  Con- 
dorcet,  after  the  execution  of  Louis  XVI.,  moved  (1793)  that  the 
death  penalty  should  be  abolished  for  all  crimes.  Both  these 
measures  were  lost. 

In  America  the  Quakers  specially  endeavoured  to  make  capital 


C^JSAB,  BONESAtfA,   MARQTTtS   Dl   BECCARIA  515 

punishment  unlawful,  and  in  the  Pennsylvania!!  legislature  (1794) 
the  death  penalty  was  limited  to  cases  of  murder.  The  above 
merely  shows  the  effect  of  Beccaria  upon  the  century  which 
produced  Beccaria. 

The  effect  on  the  nineteenth  century  it  would  be  too  long  now 
to  follow.  We  must  always  recognize  in  the  last  century  the  great 
work  of  Sir  Samuel  Bomilly,  who  drew  his  inspiration  from  Bec- 
caria, and  induced  Parliament  to  mitigate  the  extreme  severity 
of  the  English  Penal  Code.  With  his  name  and  exertions  hi  the 
past  century  there  will  ever  be  remembered  the  names  of  other 
illustrious  penal  reformers  from  Sir  James  Mackintosh  to  Charles 
Hopwood.  In  concluding  this  article,  and  for  the  purpose  of 
comparative  legislation,  we  enumerate  some  of  the  European 
countries  which  have  now  abolished,  or  partially  abolished, 
capital  punishment  as  a  record  of  the  law  existing  at  the  opening 
of  the  twentieth  century. 

Italy. — It  was  abolished  by  the  Penal  Code  of  1889,  previous 
to  which  date  for  a  long  period  it  was  commuted  to  penal  servi- 
tude for  life.  It  has  been  retained  in  the  Army  and  Navy  Penal 
Law. 

England,  India,  and  the  Colonies. — Punishment  by  death 
abolished  in  a  great  number  of  cases  (1824-29).  Abolished,  except 
in  certain  cases  such  as  wilful  murder  and  treason,  and  chiefly 
commuted  to  penal  servitude  for  life  by  the  Criminal  Law 
Consolidation  Acts,  1861.  Commission  on  Capital  Punishment 
recommended  penal  servitude  in  cases  of  unpremeditated  murder 
and  that  executions  be  private  (1865). 

United  States. — Entirely  abolished  in  some  States  :  Maine, 
Rhode  Island,  Wisconsin. 

Germany. — Practically  abolished  in  Prussia  and  Bavaria ; 
abolished  in  Saxony  (1868). 

Belgium. — Save  in  one  exception  in  1866,  during  the  late 
King's  reign,  begun  in  1865,  no  capital  punishment  took  place, 
though  the  law  existed.  Sentence  is  commuted  into  penal 
servitude  for  life. 

Denmark. — It  exists  against  premeditated  homicide  and  crimes 
against  the  safety  or  independence  of  the  State  or  Constitution. 
It  is,  as  a  rule,  commuted. 

France. — Rarely  enforced  ;  four  executions  in  126  convictions 
in  one  year. 

Netherlands. — It  has  been  abolished  since  1870. 


516  CJESAR  BOKESANA,   MARQTTIS  Dl  BECCARtA 

Norway. — No  capital  punishment  since  1876.  It  is  decreed  by 
the  Code. 

Portugal. — No  capital  punishment  exists  except  for  criminal 
and  military  offences  since  1867. 

Russia. — There  is  capital  punishment  only  for  attempts  against 
the  life  of  the  Chief  of  the  State  or  for  treason  or  sedition  against 
the  State. 

Sweden. — During  ten  years,  1891-1900,  four  persons  were  exe- 
cuted. 

Switzerland. —  Abolished  in  seventeen  out  of  twenty-one 
cantons. 

Well  may  it  be  said  of  the  Marquis  di  Beccaria,  looking  at  these 
results  of  his  Essay,  that  it  is  indeed  one  of  the  most  important 
Works  that  has  ever  been  written,  and  that  he  has  contributed 
towards  the  enduring  happiness  of  nations. 

NOTE.— Two  statues  are  erected  to  Beccaria  in  Milan — a  sitting  one  on  the 
staircase  to  the  Museum  (Palazzo  di  Brera) ;  a  standing  one  in  front  of  the 
Palace  of  Justice,  in  the  Piazza  Beccaria,  leading  from  the  Via  Cesare 
Beccaria.  On  the  pedestal  of  each  are  recorded  the  virtues  of  Beccaria,  as 
the  first  scientific  opponent  of  the  death-penalty,  with  quotations  from  his 
"  Essay."  Beccaria's  daughter  became  the  mother  of  Alessandro  Manzoni 
(poet  and  novelist),  who  left  a  daughter,  the  wife  of  Massimo  d'Azeglio 
(statesman  and  author).  Cesare  Lombroso  (the  greatest  modern  crimin- 
ologist)  lived  and  died  (1911)  in  Milan. 


LORD    STOWELL 


LORD  STOWELL 

IN  the  annals  of  English  law  there  is  no  other  instance  of  two 
brothers  attaining  such  a  high  place  as  did  William  Scott  and  John 
Scott,  who  came  to  be  known  as  Lord  Stowell  and  Lord  Eldon. 
Their  excellences  were  different  :  the  elder  was  pre-eminent  in 
counsel,  the  younger  in  advocacy  ;  the  one  was  supreme  as  jurist, 
the  other  as  statesman.  Each  of  them  occupied  a  most  dis- 
tinguished position  on  the  Bench,  the  one  as  head  of  the  Chancery 
Courts,  the  other  as  judge  of  the  Court  where  the  Civil  Law  and 
Law  of  Nations  was  administered  ;  and  if  Lord  Eldon  figured 
more  prominently  in  the  life  of  his  own  time,  his  brother  left  a 
greater  name  in  the  record  of  jurisprudence.  Before  his  day 
England  had  not  perhaps  produced  any  supreme  jurist  who  by  his 
writings  marked  a  new  development  of  the  Law  of  Nations, 
unless  we  place  in  that  class  Richard  Zouche  ;  and  it  was  fitting 
that  the  great  contribution  to  International  Law  in  a  country 
which  has  always  excelled  in  practice  rather  than  in  theory 
should  be  made  by  a  practical  and  not  by  a  theoretical  exponent. 
Lord  Stowell  made  the  law  of  prize  in  administering  it,  as  Mans- 
field and  Holt  had  made  the  law  merchant  on  the  Bench.  He 
did,  in  fact,  for  the  law  of  commerce  in  war  what  they  had  done 
for  it  in  peace — established  its  rules  on  a  clear  and  broad  basis. 
But  while  Holt  and  Mansfield's  work  had  validity  only  for  the 
people  of  their  country,  much  of  Lord  Stowell 's  obtained  the 
respect  of  the  community  of  nations.  The  judgments  that  he 
gave  were  the  "  living  voice  "  of  the  jus  gentium. 

Lord  Stowell's  Life. — William  Scott  and  John  Scott  were  the 
sons  of  a  Newcastle  shipper.  William,  who  was  six  years  the 
elder,  was  born  in  1745,  and  by  a  lucky  accident  his  mother 
had  removed  shortly  before  his  birth  to  a  house  on  the  Durham 
side  of  the  Tyne,  in  order  to  escape  the  turmoil  caused  by  the 
invasion  of  the  Young  Pretender.  The  accident  was  lucky  in 
that  it  enabled  William  Scott,  when  he  had  passed  through 

517 


518  LORD   STOWELL 

the  Grammar  School  at  Newcastle,  to  be  elected  in  1761  to 
a  Durham  Scholarship  at  Corpus  Christi  College.  Oxford.  Three 
years  later,  profiting  further  by  the  lucky  accident  of  his  birth- 
place, he  was  elected  to  a  Durham  Fellowship  at  University 
College.  Though  he  had  entered  as  a  student  at  the'  Middle 
Temple  in  1762,  and  was  already  bent  on  a  career  at  the  Bar, 
his  own  caution  and  his  father's  wish  led  him  to  remain  at 
Oxford  as  tutor  of  the  college.  He  lectured  in  ancient  history, 
and  in  his  academic  period  he  acquired  a  large  knowledge  of 
the  Roman  jurisprudence  and  of  the  whole  classical  culture,  to 
which  he  owed  the  grasp  of  the  Civil  Law  and  the  dignity 
and  lucidity  of  expression  which  marked  him  as  a  judge.  In 
1774  he  was  appointed  Camden  Professor  of  Ancient  History ; 
and  in  that  office  he  delivered  courses  of  lectures,  of  which  one 
of  his  biographers  says  that  "the  fame  of  them  rendered  his 
classic  youth  the  rival  of  his  judicial  age."  Gibbon's  remark 
that  he  was  "  assured  that  were  they  given  to  the  public  they 
would  form  a  most  valuable  treatise  "  is  less  eloquent  but  more 
convincing.  Throughout  his  life  Stowell  retained  a  close  asso- 
ciation with  literary  pursuits  and  literary  society  ;  he  was  an 
intimate  friend  of  Dr.  Johnson,  and  was  elected  a  member  of 
the  famous  literary  Club  of  which  the  doctor  was  dictator,  and 
he  lived  to  be  its  doyen.  He  did  not  write  a  book  in  the  ordinary 
sense  of  the  term,  but  the  stamp  of  literature  and  liberal  culture 
is  upon  his  judgments.  The  turning-point  of  his  life  was  the 
death  in  1776  of  his  father,  who  left  a  fortune  of  not  less  than 
£20,000  and  made  his  eldest  son  residuary  legatee.  Cautious  as 
he  was  about  risking  a  loss  of  income,  his  circumstances  were 
now  such  that  he  could  with  an  easy  mind  forgo  some  of  his 
offices  at  the  University,  and  turn  to  that  career  to  which  he 
had  looked  forward  from  his  youth.  He  resumed  his  suspended 
studies  at  the  Middle  Temple,  and  in  1777  he  writes  :  "I  have 
got  a  room  in  the  Temple,  and  keep  Term  with  a  view  of  being 
called  to  the  Bar  as  soon  as  possible,  which  will  be  in  about 
two  years." 

His  brother  John  was  already  making  his  way  at  the  Common 
Law  Bar,  but  William  elected  to  practise  in  the  Ecclesiastical 
and  Admiralty  Courts,  which  were  then  combined  in  the  precincts 
of  Doctors'  Commons.  He  took  the  degree  of  Doctor  of  Civil 
Law  at  Oxford — a  necessary  qualification — and  was  admitted 
into  the  faculty  of  advocates  of  those  Courts,  and  at  the  same 


LORD   STOWELL  519 

time  called  to  the  Bar  in  1780,  when  he  was  thirty-five  years 
of  age. 

While  the  Common  Law  prevailed  almost  exclusively  in  the 
Court  of  King's  Bench,  and  in  the  Courts  of  Chancery  an  original 
system  of  English  equity  was  being  evolved,  in  the  Ecclesiastical 
and  Admiralty  Courts,  which  had  jurisdiction  over  testaments, 
marriages,  and  shipping,  or  as  a  wag  put  it,  over  "bad  wills, 
bad  wives,  and  bad  wessels,"  the  Civil  Law  continued  to  form  the 
basis  of  jurisprudence.  From  the  beginning  of  the  sixteenth 
century  the  barristers  practising  before  those  Courts  had  formed 
themselves  into  a  college,  of  which  each  member  was  a  Doctor 
in  the  Civil  Law.  The  register  dates  from  1511,  and  the  college's 
first  habitation  was  in  a  block  of  houses  in  Knightrider  Street 
which  belonged  to  St.  Paul's  Church.  After  the  fire  of  London 
in  1666,  which  destroyed  their  property,  the  doctors  were  for  a 
time  lodged  in  Exeter  House  in  the  Strand — since  put  to  different 
uses — but  in  1672,  by  an  Order-in-Council,  they  were  authorized 
to  retake  possession  of  their  old  site,  and  they  erected  a  new 
building  which  henceforth  bore  the  name  of  Doctors'  Commons. 
This  college,  which  received  a  charter  of  incorporation,  consisted 
of  a  number  of  fellows  all  of  whom  had  to  be  doctors,  practising 
in  the  Court  of  the  Arches  or  the  Archbishop's  Court ;  and  the 
judges  of  the  tribunals  before  which  they  pleaded  were  regularly 
chosen  from  among  the  members.  The  number  of  advocates  was 
narrowly  limited  and  seldom  exceeded  twenty-five,  so  that  once 
a  man  of  ability  was  admitted,  he  was  well-nigh  certain  to  secure 
a  large  practice. 

William  Scott  was  peculiarly  fitted  for  success  in  the  branch  of 
law  to  which  he  attached  himself.  He  brought  to  it  not  only  a 
splendid  intellect,  an  unrivalled  lucidity  of  expression,  an  inti- 
mate acquaintance  with  the  Civil  Law  and  a  wide  knowledge  of 
the  history  of  the  ages  in  which  it  grew,  but  also  some  personal 
experience  of  shipping  affairs.  For  a  year  after  his  father's  death 
he  carried  on  the  shipping  business  preparatory  to  winding  it 
up  ;  and  a  privateering  enterprise  on  which  a  younger  brother 
embarked  led  him  to  direct  his  attention  to  the  Law  of  Prize. 
The  only  quality  he  lacked  was  fluency  in  public  speaking.  At  first 
he  wrote  out  his  speeches,  but  as  the  Ecclesiastical  and  Admiralty 
Courts  knew  no  jury  and  relied  more  on  written  than  on  oral 
testimony,  readiness  of  speech  was  less  requisite  than  knowledge 
of  law  and  clearness  of  argument.  In  those  respects  he  was 


520  LORD  STOWELL 

pre-eminent.  A  year  of  silence  was  imposed  upon  all  the  newly 
elected  members  of  the  college,  during  which  they  were  expected 
to  attend  the  Courts,  but  as  soon  as  the  enforced  probation  was 
over,  Scott  leapt  to  the  front.  His  brother  wrote  of  him  in 
1783  :  "His  success  has  been  wonderful,  and  he  has  been  fortu- 
nate beyond  example."  In  that  year  he  obtained  a  sinecure, 
being  appointed  the  Registrar  of  the  Court  of  Faculties,  and  in 
1788  he  became  at  once  judge  of  the  Consistory  Court  of  the 
Bishop  of  London,  Vicar-General  of  the  Archbishop  of  Canterbury, 
and  Advocate-General — a  position  which  had  the  same  rank  at 
Doctors'  Commons  as  that  of  the  Attorney-General  at  West- 
minster. The  post  was  exceptionally  lucrative  at  the  time  he 
held  it,  because  of  the  war  which  broke  out  between  England  and 
France  in  1793,  Privateering,  as  Franklin  said,  was  the  passion 
of  England  ;  the  spoils  were  large,  and  Scott  gathered  in  large  fees. 
It  was  his  duty  to  appear  for  the  Crown  in  all  cases  of  disputed 
prize,  and  as  between  1793  and  1815  the  English  Admiralty 
granted  10,000  letters  of  marque,  the  number  of  captures  which 
were  brought  in  for  decision  was  immense.  In  1798,  having 
obtained  a  commanding  position  as  advocate,  he  was  appointed 
judge  of  the  High  Court  of  Admiralty,  while  a  few  months  later 
his  brother  became  Solicitor-General.  He  had  entered  the  House 
of  Commons  in  1790  as  member  for  the  borough  of  Downton, 
after  having  been  unseated  on  petition  for  the  same  borough 
six  years  earlier,  and  in  1801  he  was  elected  as  member  for  the 
University  of  Oxford.  He  kept  his  seat  till  he  was  raised  to  the 
peerage  as  Lord  Stowell  in  1 821 .  But  he  did  not  take  a  prominent 
part  in  the  political  sphere  :  he  spoke  but  seldom  in  debate  and, 
strangely  enough,  without  distinction.  His  whole  energy  was 
given  to,  and  his  fame  was  entirely  gained  in,  his  judicial  work, 
whereby  "  he  stamped  the  image  of  his  own  mind  upon  the  inter- 
national jurisprudence  of  the  world."  As  proof  of  his  industry 
and  of  the  volume  of  cases  he  was  called  upon  to  decide  in  that 
epoch  of  incessant  war,  it  may  be  mentioned  that  in  the  year 
1806  he  gave  2,206  decrees  and  judgments.  In  addition  to  this, 
he  was  continually  advising  the  Lords  of  the  Admiralty,  and  was 
at  the  same  time  presiding  over  ecclesiastical  causes.  In  1821, 
he  resigned  his  Consistory  judgeship,  but  he  retained  his  position 
as  judge  of  the  Admiralty  Court  till  1827.  Then,  at  the  age  of 
eighty-three,  but  while  his  vigour  was  still  unimpaired,  he 
vacated  that  office.  He  gradually  declined,  and  died  in  1836, 


LORD   STOWELL  521 

leaving  a  vast  property  of  nearly  a  quarter  of  a  million  in  per- 
sonalty and  considerable  real  estate.  Though  a  bon  vivant,  he 
had  been  saving  to  the  point  of  meanness  throughout  his  life, 
and  he  loved,  as  he  put  it,  "  the  elegant  simplicity  of  the  three 
per  cents."  "  Scott  will  take  any  given  quantity  of  wine,"  was 
remarked  of  him  by  a  clerical  wit  who  noted  that  he  drank  more 
when  dining  out  than  when  at  home.  But  his  little  failings  of 
personal  character  fade  away  before  his  immense  services  to 
English  law,  and  indeed  to  the  whole  science  of  law,  which  raised 
the  fame  of  our  international  jurisprudence  to  a  height  to  which 
it  had  never  risen  before. 

It  was  the  good-fortune  of  Stowell  that  all  his  chief  judgments 
were  well  reported  and  have  been  preserved  to  illuminate  pos- 
terity ;  or  rather  it  was  the  happy  fortune  of  Dr.  Christopher 
Robinson  that  on  taking  his  seat  in  the  Admiralty  Court  in 
1798  he  determined  to  add  to  the  collection  of  reports  in  the 
other  Courts  of  Justice  a  set  recording  the  decisions  in  Admiralty, 
which  had  not  hitherto  been  so  served.  At  the  same  time  it 
was  happy  for  the  judge  that  he  was  not  fettered  in  his  applica- 
tion of  broad  principles  and  the  usage  of  nations  by  the  findings  of 
predecessors  in  his  office.  "With  the  exception  of  a  few  notes 
by  Sir  J.  Simpson  and  some  scattered  memoranda  .  .  .  and 
occasional  references  to  tradition  there  was  no  precedent  for  the 
guidance  of  Scott,"  and,  one  may  add,  no  obstacle  in  his  path. 
In  the  field  of  Ecclesiastical  Law  he  was  not  so  unhampered  : 
here  the  Canon  Law  text-books  and  precedents  hedged  him 
about ;  and  his  decisions  preserved  in  the  reports  of  Haggard  and 
Phillimore,  do  not  possess  the  same  permanent  value  and  origin- 
ality. Nevertheless,  there  are  several  cases  in  which  his  judg- 
ment has  marked  an  important  step  in  the  development  of  the 
law.  His  place  among  the  world's  jurists  depends,  of  course, 
upon  the  other  part  of  his  work,  which  is  preserved  in  the  volumes 
of  Drs.  Christopher  Robinson,  Dodson,  and  Edwards.  As  the 
Napoleonic  struggle  brought  forth  a  Pitt  to  direct  our  politics, 
a  Nelson  to  carry  our  navy  to  triumph,  and  a  Wellington  to  lead 
our  army  to  victory,  so  too  it  brought  forth  a  Scott  to  erect  our 
Prize  Law  upon  a  new  and  firm  foundation,  and  to  establish 
justice  in  our  hegemony  of  the  sea.  The  judge  fitly  realized  the 
unique  opportunity  which  lay  before  him,  and  he  lavished  an 
infinite  care  upon  the  preparation  and  edition  of  his  judgments. 
By  their  clear  adherence  to  the  principles  of  justice,  strict, 


522  LORD   STOWELL 

perhaps,  but  seldom  strained,  as  much  as  by  their  "  inimitable 
felicity  of  language,"  they  have  commanded  since  the  death  of 
their  author  the  assent  not  only  of  the  English  but  also  of  the 
American  Courts,  and,  more  than  that,  many  of  the  rules  which 
he  laid  down  in  adjudicating  upon  the  cases  before  him  have 
passed  into  the  law  of  nations.  Coleridge  in  his  Table-Talk  recom- 
mended to  all  statesmen  with  the  perusal  of  Grotius,  Bynkershoek, 
Pufendorf,  Wolf  and  Vattel  the  reports  of  Dr.  Robinson ;  and 
the  verdict  of  later  generations  has  confirmed  for  Lord  Stowell 
the  place  which  the  contemporary  poet  and  philosopher  assigned 
to  him,  as  the  finest  exponent  in  practice  of  the  law  regulating  the 
rights  of  belligerents  and  neutrals  in  war  upon  the  high  seas. 
Amid  all  the  violence  and  unwarrantable  pretensions  of  the  time, 
advanced  by  his  own  country  as  well  as  by  Napoleon,  he  held 
aloft  the  standard  of  fairness  towards  neutrals,  enforcing  the 
established  law  with  exactitude  and  severity,  but  cutting  at  the 
roots  of  innovation  ;  never  countenancing  sham  evasions  of  the 
law,  but  never,  on  the  other  hand,  countenancing  oppressive 
fictions.  In  the  stress  of  war  his  judgments  were  impugned  by 
some  American  judges,  but  his  vindication  came  upon  maturer 
consideration  :  as  one  of  them  wrote  to  him  later  :  "  On  a  calm 
review  of  your  decisions  after  a  lapse  of  years,  I  am  bound  to 
confess  my  entire  conviction  both  of  their  accuracy  and  equity." 

Lord  Stowell's  Judgments. — The  distinguishing  characteristic 
of  Lord  Stowell's  judgments  is  his  unerring  faculty  for  seizing 
on  the  true  bearing  of  every  problem  presented  to  him,  and  his 
equally  unerring  powers  of  applying  broad  propositions  of  law 
to  every  combination  of  circumstances.  Perhaps  it  is  due  to  his^ 
early  career  that  he  brought  to  the  Bench  a  philosophic  grasp 
such  as  few  English  judges  have  exhibited.  Certain  it  is  that 
he  scorned  all  chicanery  and  fiction,  and  that  the  distinctions 
which  he  drew  between  different  cases  of  capture  and  prize  are 
always  based  upon  clear  principles. 

To  deal,  however,  first  with  the  minor  part  of  his  work  which 
affected  only  English  jurisprudence.  Several  of  his  decisions 
when  sitting  in  the  Episcopal  Courts  have  become  leading  cases. 
What  characterizes  them  all  is  the  thoroughness  ard  symmetry  of 
their  form.  First  he  lays  down  the  broad  principles  to  be  applied 
in  the  class  of  case  before  him,  with  apt  reference  to  the  Civil 
or  Canon  Law  applicable  :  then  with  mastery  of  learning  he  deals 
with  the  text-writers  or  judicial  precedents,  and  distinguishes 


LORD   STOWELL  523 

or  adopts  their  remarks  :  and  finally  he  dissects  with  singular 
acumen  and  lucidity  the  facts  and  the  evidence  in  the  case  before 
him  and  applies  the  law  which  he  has  already  enunciated.  Typical 
is  his  judgment  in  the  case  of  Dalrymple  v.  Dalrymple,  reported 
in  Haggard  (vol.  ii.,  p.  54).  In  that  case  he  was  called  upon  to 
decide  whether  a  marriage  entered  upon  by  civil  contract  without 
a  religious  celebration  according  to  the  law  of  Scotland  was  valid, 
one  of  the  parties  being  an  English  officer  on  service,  quartered 
in  Scotland.  Of  the  objection  raised  on  this  score  he  makee 
short  work : 

"Being  entertained  in  an  English  court,  the  case  must  be 
adjudicated  according  to  the  principles  of  English  law  applicable 
to  such  a  case.  But  the  only  principle  applicable  to  such  a  case 
by  the  law  of  England  is  that  the  validity  of  Miss  G.'s  marriage 
rights  must  be  tried  by  reference  to  the  law  of  the  country  where, 
if  they  emit  at  all,  they  had  their  origin.  Having  furnished  this 
principle,  the  law  of  England  withdraws  altogether,  and  leaves 
the  legal  question  to  the  exclusive  judgment  of  the  law  of  Scotland." 
He  passes  on  to  an  elaborate  analysis  of  the  general  Roman  and 
Canon  Law  of  marriage,  and  then  to  a  consideration  of  the 
marriage  law  of  Scotland,  in  order  to  see  in  what  instances  it 
has  "  resiled  "  from  the  general  law.  He  reviews  first  the  opinions 
of  all  the  authoritative  Scottish  jurists,  and  next  the  judicial 
decisions  of  the  Scottish  Courts,  and  finally  enunciates  the  rule 
that  by  the  law  of  Scotland  "the  marriage  contract  de  prcesenti 
does  not  require  consummation  in  order  to  become  very  matri- 
mony ;  that  it  does  ipso  facto  et  ipso  jure  constitute  the  relation 
of  man  and  wife." 

Similar  in  its  general  framework  is  the  judgment  in  Lindo  v. 
Belisario  (1  Haggard,  216),  where  he  has  to  determine  the  validity 
not  of  a  Scottish  but  of  a  Jewish  marriage — a  new  point  in  the 
English  Courts.  Here,  in  the  same  thorough  fashion,  he  examines 
and  weighs  the  opinions  of  the  various  Rabbinic  authorities  upon 
the  question  whether  a  betrothal  carried  out  with  certain  cere- 
monies ranks  as  a  binding  marriage  contract,  and  hi  the  end, 
feeling  himself,  as  he  says,  to  be  on  novel  ground,  "on  which 
doubts  ought  to  be  entertained  and  questions  sifted  with  great 
caution,"  he  frames  a  few  particular  questions  which  he  addresses 
to  the  Jewish  authorities  ;  and  upon  the  answers  to  these  questions 
he  later  gives  his  judgment.  "  If,"  he  remarks,  "  I  were  to  deter- 
mine the  question  of  marriage  on  principles  different  from  the 


524  LORD   STOWELL 

established  authorities  amongst  the  Jews  as  now  certified,  I 
should  be  unhinging  every  institution,  and  taking  upon  myself 
the  responsibility  as  Ecclesiastical  Judge,  in  opposition  to  those 
who  possess  a  more  natural  right  to  determine  on  questions  of 
this  kind." 

The  principle  here  laid  down  that  domicile  does  not  involve 
an  unlimited  subjection  to  the  ordinary  laws  of  the  country,  he 
affirms  again  in  one  of  the  last  decisions  he  gave  as  judge  of  the 
Consistory  Court — Reading  v.  Smith,  1821  (2  Haggard,  371),  when 
the  question  was  as  to  the  validity  of  a  marriage  celebrated  in 
South  Africa  between  two  British  subjects  which  would  have 
been  void  by  the  local  law.  He  held  that  the  marriage  was 
good,  because  of  the  circumstances  that  the'husband  was  an  officer 
in  the  British  forces  occupying  the  country,  the  parties  had  been 
married  by  the  English  chaplain,  and  the  marriage  had  stood 
for  twenty-five  years.  He  was  free  to  apply  equitable  principles, 
because  "  while  the  English  decisions  have  established  the  rule 
that  a  foreign  marriage,  valid  according  to  the  law  of  the  place 
where  celebrated,  is  good  everywhere  else,  they  have  not  e  con- 
verso  established  that  marriages  of  British  subjects,  not  good 
according  to  the  general  law  of  the  place  where  celebrated,  are 
universally  to  be  regarded  as  invalid  in  England." 

Though  willing  to  apply  equitable  justice  wherever  he  felt  it 
open  to  him,  Sir  William  Scott  never  allowed  himself  to  be  moved 
from  the  strict  administration  of  the  established  law  by  vague 
considerations  of  humanity.  At  the  outset  of  his  judgment  in 
Evans  v.  Evans  (1  Haggard,  35),  where  he  defined  the  conditions 
of  "  legal  cruelty  "  as  a  ground  of  divorce  in  a  way  which  has 
never  been  excelled,  he  states  his  maxim  concisely  :  "  Humanity 
is  the  second  virtue  of  the  Courts,  but  undoubtedly  the  first  is 
justice."  It  was  the  same  outlook  which  led  him  to  hold  in  the 
trial  of  The  Slave  Grace — which  came  to  him  on  appeal  from  the 
Vice-Admiralty  Court  of  Antigua — that  the  temporary  residence 
in  England  of  a  negro  slave  without  manumission  suspends,  but 
does  not  extinguish,  the  status  of  slavery  of  a  person  who  after 
such  residence  voluntarily  returns  to  a  country  where  slavery  is 
legal.  The  decision  aroused  great  opposition  at  the  time  and 
is  of  only  academic  interest  to-day ;  but  though  the  last  of 
Stowell's  reported  judgments,  it  is  impregnated  with  the  same 
mastery  of  principle  and  unswerving  respect  for  the  law  as  his 
Admiralty  decisions  in  prize  law.  It  is  significant  that  in  a 


LORD  STOWELL  525 

letter  to  Mr.  Justice  Story  he  expressed  his  personal  disgust  at 
the  continuance  of  slavery  in  the  West  Indies,  and  that  the 
American  jurist  in  reply  declared  his  complete  agreement  with 
his  reasoning  in  this  judgment. 

As  he  did  not  allow  personal  feeling  to  influence  his  judgment 
in  times  of  peace,  so  in  times  of  war  he  was  not  swayed  by 
national  antipathies  in  considerations  of  national  interest. 
Foreign  critics  have  indeed  accused  him  of  undue  severity  ;  but 
the  complaint  is  rather  that  the  law  which  he  administered  was 
oppressive  upon  neutrals  than  that  he  administered  it  with  par- 
tiality or  national  bias  in  favour  of  captors.  And  hi  defence  of 
his  attitude  towards  neutrals,  it  should  be  pointed  out  that  he 
was  judge  of  the  Admiralty  Court  when  England  was  fighting 
for  her  national  existence,  and  when  Napoleon  sought  to  make 
neutrals  his  instruments  in  the  war  against  English  commerce. 
The  supreme  justification  of  Stowell's  decrees  is  that  the  United 
States,  whose  merchants  had  been  hardest  hit  by  them,  came 
afterwards  to  recognize  their  equity  and  to  follow  them  when 
they  became  belligerent. 

Prize  Law. — To  turn  now  to  these  decisions,  it  is  unnecessary 
to  summarize  the  Prize  Law  of  England  as  it  was  established  by 
Stowell.  AH  one  can  do  is  to  notice  a  few  points  which  illustrate 
his  general  outlook,  and  some  of  the  rules  which  he  laid  down.  His 
judgment  delivered  during  the  first  year  of  his  office  (1798),  in  the 
case  of  The  Maria  (1C.  Rob.,  350),  one  of  a  fleet  of  Swedish  mer- 
chantmen which  was  sailing  under  convoy  of  a  ship  of  war,  and 
in  pursuance  of  the  principles  of  the  Armed  Neutrality  resisted 
visitation  and  search  by  a  British  cruiser,  has  become  a  classic 
of  International  Law.  He  enunciates  in  two  sentences  the  proper 
character  of  the  Prize  Court  as  a  tribunal  where  the  law  of  nations 
is  administered.  "  The  seat  of  judicial  authority  is  locally  here 
in  the  belligerent  country,  according  to  the  known  law  and  prac- 
tice of  nations,  but  the  law  itself  has  no  locality.  It  is  the  duty 
of  the  judge  sitting  in  an  Admiralty  Court  not  to  deliver  occasional 
and  shifting  opinions  to  serve  present  purposes  and  particular 
national  interests,  but  to  administer  with  indifference  that  justice 
which  the  law  of  nations  holds  out  without  distinction  to  inde- 
pendent States,  some  happening  to  be  neutral  and  some  belli- 
gerent." And  upon  the  merits  of  the  case  before  him  he  insists 
that  the  usages  and  practice  of  nations  have  recognized  the  right 
of  the  belligerent  to  protect  himself  through  search  of  suspected 


526  LORD   STOWELL 

ships  against  assistance  being  given  to  his  enemy  by  neutrals, 
and  he  sweeps  away  the  loose  arguments  urged  in  support  of  the 
rules  of  the  Armed  Neutrality  that  convoyed  ships  should  be  free 
from  search.  "  Upon  such  unauthorized  speculations  it  is  not 
necessary  for  me  to  descant ;  the  law  and  practice  of  nations  (I 
include  particularly  the  practice  of  Sweden  when  it  happens  to  be 
belligerent)  give  them  no  sort  of  countenance,  and  until  that  law 
and  practice  are  newly  modelled  in  such  a  way  as  may  surrender 
the  honour  and  ancient  rights  of  some  nations  to  the  present  con- 
veniences of  other  nations  (which  nations  may  perhaps  remember 
to  forget  them  when  they  happen  to  be  themselves  belligerent), 
no  reverence  is  due  to  them  :  they  are  the  elements  of  that  system 
which,  if  it  is  consistent,  has  for  its  real  purpose  an  entire  aboli- 
tion of  capture  in  war,  that  is,  in  other  words,  to  change  the 
nature  of  hostility  as  it  has  ever  existed  among  mankind,  and  to 
introduce  a  state  of  things  not  yet  seen  in  the  world — that  of  a 
military  war  and  a  commercial  peace."  The  Declaration  of 
London  of  1908  proposes  indeed  the  renunciation  of  the  right 
of  search  of  convoyed  neutral  vessels,  so  that  the  exact  point 
decided  in  the  case  may  be  obsolete ;  but  the  principles  which 
are  laid  down  in  this  judgment  as  to  the  bindingness  of  inter- 
national practice,  till  by  the  consent  of  nations  it  is  changed, 
remain  of  abiding  validity. 

Lord  StoweU  conceived  the  position  of  a  Prize  Court  in  its  full 
dignity  and  responsibility  as  an  international  Court,  administering 
not  the  national  judge's  theories,  but  the  acknowledged  practice  of 
nations,  and  he  defined  this  conception  most  eloquently  in  a  case 
where  he  had  to  determine  whether  a  belligerent  could  set  up  a 
Prize  Court  in  neutral  territory  (The  Flad  Oyen,  1  C.  Bob.,  135). 
A  French  privateer  had  carried  an  English  prize  vessel  into 
Bergen,  and  there  procured  its  condemnation  by  the  French 
Consul.  In  repudiating  the  condemnation  he  declares  :  "  It  is 
my  duty  not  to  admit  that  because  one  nation  has  thought 
proper  to  depart  from  the  common  usage  of  the  world  and  to 
treat  the  notice  of  mankind  in  a  new  and  unprecedented  manner, 
that  I  am  on  that  account  under  the  necessity  of  acknowledging 
the  efficacy  of  such  a  novel  institution,  merely  because  general 
theory  might  give  it  a  degree  of  countenance  independent  of  all 
practice  from  the  earliest  history  of  mankind.  The  institution 
must  conform  to  the  text-law  and  likewise  to  the  constant  usage 
upon  the  matter."  He  neither  introduced  new  doctrines  him- 


LOED   STOWELL  527 

self,  nor  could  he  respect  their  introduction  by  foreign  powers. 
His  function,  as  he  understood  it,  was  where  a  clear  practice 
did  not  exist,  to  define  exactly,  by  application  to  particular  and 
varying  cases,  the  general  principles  that  were  to  be  found  in  the 
works  of  the  great  publicists  ;  where  it  did  exist,  to  follow  it  and 
if  necessary  amplify  its  scope. 

Among  the  doctrines  hitherto  attended  with  doubt,  which  Lord 
Stowell  placed  upon  a  certain  foundation,  was  the  illegality  of 
trading  with  the  enemy  during  war.  In  the  case  of  The  Hoop 
(1799,  1  C.  Rob.,  196)  he  reviewed  the  large  number  of  cases 
decided  by  the  English  Lords  of  Appeal  during  the  eighteenth 
century,  and,  bringing  to  their  support  the  statements  of  Byn- 
kershoek,  he  enunciated  the  clear  principle  that  "  all  trading  with 
the  public  enemy  unless  with  the  permission  of  the  Sovereign 
is  interdicted."  The  disability  of  an  alien  enemy  to  sue  in  the 
Courts  is  the  reason  for  the  prohibition  ;  since  "  a  state  in  which 
contracts  cannot  be  enforced  cannot  be  a  state  of  legal  com- 
merce." The  excellence  of  this,  as  of  so  many  of  Stowell's 
judgments,  is  not  that  it  introduces  a  new  rule,  but  that  it 
elucidates  the  existing  doctrine  and  confirms  it  with  reason.  His 
statement  of  the  rule  is  an  illustration  of  Pope's  words, 
"What  oft  was  held,  but  ne'er  so  well  expressed." 

The  doctrine  of  "trade  domicil  in  war"  is  another  to  which 
he  gave  definiteness  and  stability.  In  his  day  the  requirements 
of  domicil  for  the  purposes  of  the  personal  law  had  not  been 
thoroughly  investigated  ;  but  sitting  as  a  Prize  Court  judge  he 
was  concerned  with  a  different  kind  of  domicil — viz.,  the  quality 
of  residence  in,  or  association  with,  a  foreign  country  which  was 
necessary  to  clothe  a  man  with  enemy  or  neutral  character. 

The  object  of  the  prohibition  of  trade  with  the  enemy  and  the 
confiscation  of  enemy  ships  and  cargoes  being  to  prevent  the 
increase  of  wealth  which  commerce  brings,  the  belligerent  attached 
enemy  character  to  a  merchant  not  according  to  his  nationality, 
but  according  to  his  place  of  residence  or  his  place  of  business. 
If  a  British  or  an  enemy  subject,  either  before  or  during  the  war, 
removed  to  a  neutral  country  and  bona  fide  took  up  his  residence 
there,  then  his  innocent  trading  did  not  offend  against  the 
belligerent ;  if,  on  the  other  hand,  a  neutral  subject  took  up  his 
residence  or  established  a  business  house  in  England  or  in  an 
enemy  country,  his  ship  or  his  cargo  received  the  national 
character  of  its  origin.  Under  the  influence  indeed  of  the  ideas 


528  LORD    STOW  ELL 

of  the  French  Revolution  which  emphasized  the  principle  of 
nationality,  the  French  Prize  Courts  adopted  another  criterion 
of  enemy  character,  and  made  it  depend  upon  the  political 
allegiance  of  the  subject.  Thus  it  was  held  in  the  case  of  Le 
Hardy,  1802,  that  a  neutral  merchant  domiciled  in  a  belligerent 
country  did  not  acquire  a  belligerent  character,  and  his  property 
at  sea  was  neutral  property. 

The  new  doctrine,  however,  found  no  favour  with  Stowell. 
Every  person  domiciled  in  an  enemy  state,  whether  a  born 
subject  of  that  state  or  not,  he  regarded  as  an  enemy,  and  he 
condemned  his  ship  or  cargo  if  captured  (cf.  The  Indian  Chief, 
1801,  3  C.  Rob.,  12).  Conversely,  every  person  domiciled  in  a 
neutral  country,  whether  a  British  or  a  neutral  or  an  enemy 
subject,  he  regarded  for  purposes  of  maritime  capture  as  a  neutral 
(cf.  The  Danous,  1802,  4  C.  Rob.,  255).  This  was  the  general 
rule,  but  with  his  strict  application  of  the  law  in  favour  of  captors 
Stowell  further  laid  down  in  The  Jonge  Klassine  (1804,  5  C.  Rob., 
302)  that  a  merchant  may  have  mercantile  concerns  in  two  coun- 
tries, and  if  he  acts  as  a  merchant  of  both  must  be  liable  to  be 
considered  as  a  subject  of  both.  Hence  the  cargo  derived  from 
the  business  house  of  a  neutral  owner  in  the  enemy  country 
might  be  condemned.  On  the  other  hand,  he  pointed  out  in 
The  Herman  (1802,  4  C.  Rob.,  228)  that  "  when  a  person  has  a 
house  of  trade  in  the  neutral  country,  and  one  in  Great  Britain 
secondary  to  his  house  in  the  neutral  country,  that  he  may  carry 
on  trade  with  the  enemy  from  his  first  house  cannot  be  denied, 
provided  it  does  not  originate  from  his  house  in  London,  nor  vest 
an  interest  in  that  house."  And  while  the  intention  of  permanent 
residence  in  a  country  was  necessary  in  his  day  to  fix  domicil 
for  civil  purposes,  he  held,  as  the  nature  of  the  case  required, 
that  a  trade  domicil  for  the  purpose  of  establishing  enemy  or 
neutral  character  might  be  more  easily  acquired.  Any  residence 
or  establishment  in  the  country  for  commercial  purposes  such  as 
made  a  person's  trade  or  business  contribute  to  and  form  part  of  the 
resources  of  such  country  was  sufficient,  whether  or  not  there  was 
an  intention  to  make  the  country  a  permanent  home.  The  trade 
domicil,  again,  might  be  lost  as  easily  as  it  was  gained.  Stowell 
formulated  the  two  main  rules  which  still  govern  the  subject  of 
commercial  domicil  in  the  cases  of  The  Harmony  (1800,  2  C.  Rob., 
322)  and  The  Indian  Chief  (1801,  3  C.  Rob.,  12).  In  the  former 
he  pointed  out  that  "  time  is  the  grand  ingredient  in  constituting 


LORD  STOWELL  529 

domicil  ...  be  the  occupation  what  it  may,  it  cannot  happen 
but  with  few  exceptions  that  a  mere  length  of  time  shall  not  con- 
stitute a  domicil,"  while  hi  the  latter  he  declared  :  "  The  character 
that  is  gained  by  residence  ceases  by  residence  ;  it  is  an  adventi- 
tious character  which  no  longer  adheres  to  him  (the  merchant) 
from  the  moment  that  he  puts  himself  in  motion  bona  fide  to  quit 
the  country  sine  animo  revertendi." 

Some  modern  writers  have  denied  that  there  should  be  any 
difference  between  trade  domicil  in  time  of  war  and  personal 
domicil  in  time  of  peace,  but  the  distinction  is  reasonably  based 
on  the  different  purpose  and  consequences  of  the  two  statutes, 
and  it  has  been  regarded  by  both  English  and  American  Courts 
for  a  century  ;  and  Stowell's  standard  of  domicil  for  prize  purposes 
has  been  throughout  adopted. 

It  would  be  tedious  to  mention  the  decisions  in  which  Lord 
Stowell  defined  the  English  rule  as  regards  contraband,  absolute 
and  conditional,  and  the  penalty  for  its  carriage,  the  conditions 
of  a  blockade  by  notice  and  de  facto,  and  the  varying  penalties 
for  its  breach,  unneutral  service  by  carriage  of  despatches  or 
military  officers  of  the  enemy,  and  the  legal  consequences  attach- 
ing to  it,  the  effect  of  recapture  of  a  prize,  and  of  the  transfer  of  a 
cargo  in  transitu  by  a  belligerent  to  a  neutral  owner,  and  the 
engagement  by  a  neutral  in  the  colonial  and  coasting  trade  of  the 
enemy.  Suffice  it  to  say  that  he  settled  our  Prize  Law  upon  all 
these  points,  and,  though  circumstances  have  changed,  and  inter- 
national agreements  have  largely  cut  down  the  rights  of  maritime 
capture,  his  judgments  still  remain  the  surest  guide  upon  Prize 
Law,  and  mark  out  with  scarcely  an  exception  the  proper  limit 
of  interference  with  neutral  trade. 

The  Doctrine  of  Continuous  Voyage. — On  one  point,  indeed, 
modern  practice  has  countenanced  an  extension  of  a  rule  which 
he  formulated,  beyond  the  point  to  which  he  applied  it.  In 
order  to  evade  the  prohibition  against  carrying  merchandise 
from  the  French  and  Dutch  Colonies  during  the  Napoleonic 
wars,  the  shippers  of  the  United  States  were  in  the  habit  of 
consigning  the  goods  in  the  first  place  to  some  neutral  port 
in  the  United  States  or  elsewhere,  and  then  transhipping  them 
on  another  vessel  which  brought  them  to  Europe  as  colour- 
able American  merchandise.  Lord  Stowell,  however,  crushed 
this  evasion  in  condemning  The  Maria,  No.  3  (5  C.  Bob.,  365),  and 
The  William,  No.  2  (ibid.,  p.  585).  The  Court,  he  insisted,  did 

35 


5&0  LORD    SfOwELt, 

not  regard  the  fiction,  but  the  fact,  and  if  the  cargo  were  in  fact 
destined  for  the  enemy's  country,  or  in  fact  derived  from  the 
enemy's  colony,  then  it  was  confiscated  whether  it  was  nominally 
consigned  to,  or  had  been  nominally  transhipped  from,  a  neutral 
port.  "  The  truth  may  not  always  be  discernible,  but  when  it  is 
discovered,  it  is  according  to  the  truth  and  not  according  to  the 
fiction  that  we  are  to  give  to  the  transaction  its  character  and 
denomination.  If  the  voyage  from  the  place  of  lading  be  not 
really  ended,  it  matters  not  by  what  acts  the  party  may  have 
evinced  his  desire  of  making  it  appear  to  have  ended." 

But  in  the  case  of  ordinary  contraband  trading  he  did  not  apply 
the  so-called  doctrine  of  continuous  voyage.  A  ship,  he  said, 
could  only  be  condemned  out  of  her  own  mouth,  and  the  articles 
to  be  confiscated  must  be  taken  in  ddicto,  in  the  actual  prosecu- 
tion of  the  voyage  to  an  enemy's  port  (The  Imina,  3  C.  Rob.,  167). 
Though  there  might  be  the  strongest  reason  to  suspect  the 
ultimate  hostile  destination  of  her  cargo,  yet,  if  her  own  port  of 
delivery  were  neutral,  the  cargo  was  immune.  The  growth  of 
railways  and  the  desire  of  belligerents  to  compensate  themselves 
for  the  loss  of  offensive  rights  which  the  Declaration  of  Paris  has 
entailed,  by  pressing  those  that  remain,  have  led  to  the  application 
of  the  rule  of  continuous  voyage  to  any  cargo  of  contraband  goods 
which  is  ultimately  destined  for  the  enemy's  forces.  Long 
disputed,  the  usage  has  received  the  sanction  of  the  Declaration  of 
London  as  regards  goods  which  are  absolute  contraband,  though 
not  as  regards  those  which  are  only  conditional  contraband. 
To  another  innovation  of  latter-day  belligerents  which  has  not 
yet  received,  and  it  may  be  hoped  will  never  receive,  international 
sanction,  Lord  Stowell  lent  no  countenance,  viz.,  the  destruction 
of  neutral  prizes  before  proper  condemnation  in  a  Prize  Court, 
without  making  compensation  to  the  neutral  owner,  if  in  the  end 
the  guilt  of  the  vessel  were  not  proved.  His  opinions  upon  the 
proper  treatment  of  prizes  by  the  captor  are  set  out  in  his  last 
recorded  prize  judgment,  The  Felicity  (1819,  2  Dodson,  381). 

In  all  cases  of  capture,  he  says,  it  is  the  captor's  first  duty  to 
bring  in  the  prize  to  port  for  adjudication.  "  If  impossible  to 
bring  in,  the  next  duty  is  to  destroy  enemy's  property.  Where 
doubtful  whether  enemy's  property  and  impossible  to  bring  in, 
no  such  obligation  arises,  and  the  safe  and  proper  course  is  to 
dismiss.  When  it  is  neutral,  the  act  of  destruction  cannot  be 
justified  to  the  neutral  owner  by  the  gravest  importance  of  such 


LOUD   STOWELL  531 

an  act  to  the  public  service  of  the  captor's  own  state ;  to  the 
neutral  it  can  only  be  justified  under  any  such  circumstances  by 
a  full  restitution  in  value.  These  are  rules  so  clear  in  principle 
and  established  in  practice,  that  they  require  neither  reasoning 
nor  precedent  to  illustrate  or  support  them." 

It  has  been  said  of  sermons  that,  while  dealing  with  eternal 
subjects,  they  tend  to  be  the  most  ephemeral  literature  ;  and  so 
it  might  be  said  of  prize  judgments,  that  though  concerned  with 
International  Law,  they  tend  to  be  the  most  national  expressions 
of  judicial  opinion.  But  at  the  beginning  of  the  nineteenth 
century  Stowell  in  England,  and  to  a  smaller  degree  Marshall  in 
the  United  States,  bringing  to  their  national  Prize  Courts  two  of  the 
greatest  intellects  of  the  time,  realized  the  ideal  character  of  the 
jurisdiction  entrusted  to  them,  and  established  an  Anglo-Saxon 
law  of  prize  which  may  truly  be  described  as  "  a  light  to  the 
nations."  It  is  one  of  the  surest  testimonies  of  the  stability  of 
Stowell's  work  that  the  Declaration  of  London,  which  was 
recently  drawn  up  by  representatives  of  the  great  Powers  to 
serve  as  a  code  of  maritime  law  in  war,  embodies  many  of  the 
rules  which  he  formulated  when  sitting  as  judge  of  the  British 
Prize  Court.  And  the  International  Convention  for  the  establish- 
ment of  an  International  Prize  Court,  which  was  promoted  by 
the  British  Government  and  signed  by  the  delegates  of  all  the 
Powers  at  The  Hague  Peace  Conference,  1907,  gives  reality  at 
last  to  that  ideal  of  the  Prize  Court  which  he  upheld,  as  a  tribunal 
administering  the  law  of  nations,  by  providing  for  the  constitu- 
tion of  an  appeal  court  in  matters  of  prize,  which  shall  be  as 
well  in  fact  as  in  theory,  and  both  in  its  membership  and  the 
law  it  applies,  international. 


BENTHAM 

THE  accepted  tradition  calls  Jeremy  Bentham  a  jurist.  But 
there  is  nothing  paradoxical  in  the  statement  that  in  any  true  and 
proper  sense  of  the  term  he  is  not  a  jurist  at  all.  It  may  be 
conceded  that  upon  English  legislation  in  the  domain  of  the 
penal  law,  and  in  the  sphere  of  the  procedure,  both  civil  and 
criminal,  and  in  the  great  revolution,  whereby  the  fusion  of  law 
and  equity  was  accomplished,  his  influence  was  paramount. 
It  is  not  doubted  that  he  had  a  very  extended  knowledge  of 
the  English  law  of  his  day,  but  he  knew  little,  if  anything,  of 
the  history  of  that  system  for  the  study  of  which  the  materials 
were  so  abundant.  He  gravely  records  "a  curious  fact,  that 
in  Henry  the  VI. 's  time  the  judges  had  laid  a  plot  for  getting 
all  the  land  in  the  Kingdom  (like  the  priests),  by  outlawing 
all  whom  they  liked — with  great  formalities  always,  but  no 
grounds.  The  abuse  was  got  rid  of  by  somebody  declaring 
that  this  should  not  be  done."  A  writer  who  can  make  such  an 
assertion  has,  of  course,  no  pretension  to  legal  scholarship. 
Bentham  had  but  to  look  into  the  Year  Books  of  that  reign,  or 
to  read  the  De  Laudifous  of  Fortescue,  then  a  Chief  Justice,  to 
ascertain  that  what  he  took  for  history  was  as  absurd  as  the 
statements  of  Horn's  Mirror.  Bentham  knew  not  his  Year  Books 
nor  his  Coke,  much  less  his  Bracton,  and  even  when  criticizing 
Blackstone,  he  would  have  been  much  better  occupied  in  acquiring 
an  historical  knowledge  of  the  development  of  the  common  law. 
The  fact  is  that  Bentham  knew  English  law  simply  as  an  articled 
attorney's  clerk  would  have  known  it,  in  the  base,  mechanical 
fashion  of  the  empiricist ;  he  knew  it  as  an  existing  body  of 
arbitrary  rules,  but  the  antecedent  conditions  that  made  the  law 
what  it  was,  the  marvellous  phenomena  of  its  development,  never 
occurred  to  him  as  a  subject  of  research. 

Even  on  the  subject  of   the  rules  of  evidence,   where  his 
views  have   attained  such  a  distinct  triumph   in   legislation, 

032 


JEREMY   BENTHAM 


BENTHAM  533 

Bentham  was  profoundly  ignorant  of  the  reasonable  basis  for 
those  rules.  The  slow  and  careful  outgrowth  of  the  experience 
of  centuries  of  acute  practical  and  enlightened  men,  striving  to 
make  a  jury  of  twelve  men  chosen  at  haphazard  an  adequate 
instrument  for  the  intelligent  decision  of  legal  controversies, 
was  to  him  a  closed  book.  The  influence  of  the  jury  system 
in  the  orderly  development  of  English  political  liberty,  whereby 
the  citizen  was  welded  to  the  existing  government  as  an  integral 
part  of  it,  never  occurred  to  him  as  an  extraordinary  political 
device.  He  treated  the  whole  subject  of  judicial  evidence  as  if 
the  rules  had  been  enacted  in  his  own  day,  to  suit  merely  that 
small  part  of  the  contemporaneous  life  of  his  country,  which  he 
appreciated,  and  that  small  part  of  the  population  which  he 
understood.  His  advocacy  of  the  abolishment  of  the  rule  that 
interested  parties  should  not  testify  in  courts  of  law  took  little 
account  of  the  vivid  realization  by  religious  men  that  he  who  had 
taken  an  oath  to  speak  truly  with  the  help  of  God  had  taken  the 
name  of  his  Lord  in  vain,  if  he  committed  perjury  ;  and  that  it 
conduced  more  to  "  the  greatest  happiness  of  the  greatest  num- 
ber," that  parties  in  interest  should  not  testify  at  all,  rather  than 
that  courts  should  lead  them  into  the  temptation  of  imperilling 
their  immortal  souls. 

While  Bentham  was  little  versed  in  the  history  of  English  law, 
he  was  profoundly  ignorant  of  Roman  and  Continental  law. 
His  view  of  the  Roman  law  was  so  inadequate  as  to  cause  him 
to  pronounce  it  "a  parcel  of  dissertations  badly  drawn  up." 
Although  Bauer  and  Weiss  and  their  great  pupil  Savigny  had 
created  during  Bentham's  life  the  critical  study  of  Roman  law 
and  medieval  jurisprudence,  although  the  greatest  legal  pheno- 
menon in  history — the  survival  of  Roman  law  through  the  ruin 
of  the  Empire  and  through  the  Dark  Ages — was  fully  demon- 
strated, although  Savigny  in  his  famous  pamphlet  had  saved 
Germany  from  the  evils  of  such  a  raw  codification  as  Bentham 
proposed  for  all  countries,  although  Savigny  had  demonstrated 
that  an  historical  study  of  the  existing  law  was  a  condition 
precedent  to  any  science  of  law,  without  which  codification  is 
brutum  fulmen,  Bentham  never  seems  to  have  discovered  that 
such  men  were  living  and  writing.  His  fundamental  idea  was  that 
the  legislator  must  first  arrange  a  proper  code  of  laws  upon  a 
philosophy  of  human  nature  borrowed  from  Helvetius,  which 
considered  a  balancing  of  so-called  pleasure  and  pain  that  ignored 


534  BENTHAM 

the  higher  attributes  of  the  human  spirit ;  then  this  code  so  ar- 
ranged should  be  settled  so  that  no  body  of  decision  in  regard 
to  the  meaning  of  its  provisions  could  ever  grow  up  around  it ; 
then  this  result  should  be  made  certain  by  never  permitting  any 
lawyer  to  become  a  judge,  and  that  code  so  settled  would  be 
good  and  workable  for  any  nation  regardless  of  its  existing  law, 
or  its  past  history,  or  its  racial  or  social  characteristics.  This 
is  the  secret  of  Bentham's  offers  to  make  the  same  code  for 
Turkey,  for  Egypt,  for  France,  for  Spain,  for  Portugal,  for 
Russia,  for  Switzerland,  for  Morocco,  for  the  States  of  our  Union, 
and  for  the  new  South  American  Republics. 

These  facts  make  it  apparent  that  Bentham  has  no  claim  to 
the  title  of  jurist.      A  school  of  English  jurists  was  to  arise,  but 
Bentham  missed  the  opportunity  of  creating  it.    His  leisure, 
his  ample  means,  his  long  life,  would  have  furnished  an  ideal 
setting  for  a  great  jurisconsult.    But  Bentham  had  no  taste  for 
that  kind  of  labour.  The  mass  of  material  which  later  generations 
were  to  use  with  such  brilliant  effect  he  passed  by,  although  he 
knew  its  value,  for  he  himself  has  told  us  :  "  Traverse  the  whole 
continent  of  Europe,  ransack  all  the  libraries  belonging  to  all  the 
jurisprudential  systems  of  the  several  political  States,  add  the 
contents  together,  you  would  not  be  able  to  compose  a  collection 
of  cases  equal  in  variety,  in  amplitude,  in  clearness  of  statement 
— in  a  word,  all  points  taken  together,  in  constructiveness — to 
that  which  may  be  seen  to  be  afforded  in  the  collection  of  English 
reports  of  adjudged  cases."    Knowing  all  this,  Bentham  deliber- 
ately turned  to  the  easier  task  of  constructing  a  general  political 
philosophy.    Although  his  application  of  his  greatest  happiness 
principal  was  really  based  upon  a  low  view  of  human  nature, 
and  although,  as  his  letters  show,  like  most  reformers,  he  had  the 
lowest  possible  view  of  the  men  with  whom  he  came  in  contact, 
although  he  had  little  confidence  or  trust  in  his  fellow-men  in 
private  life,  he  based  his  theory  of  a  proper  form  of  government 
upon  the  idea  which  all  history  disproves,  but  which  was  then  so 
fashionable,  that  the  individual  human  being  is  something  divine, 
that  all  history  and  all  the  past  have  been  a  conspiracy  against 
him,  that,  if  permitted,  he  will  do  what  is  right  without  exertion, 
without  self-conquest,  because  it  agrees  with  his  nature  to  do  so. 
This  conception  finds  no  small  part  of  its  support  in  the  naive 
belief  that  conscience  actually  teaches  us  what  is  right,  not 
merely  to  do  what  we  may  happen  to  think  is  right.     Given  this 


BENTHAM  535 

fundamental  concept,  the  remainder  of  Bentham's  political 
arrangements,  including  his  form  of  government,  universal  suf- 
frage, one  code  for  all  peoples,  the  secret  ballot,  the  abolition  of 
the  legal  profession  and  elective  judges  is  an  easy  deduction. 
It  is  apparent  that  there  is  nothing  novel  in  any  of  his  suggestions. 
Most  of  them  somewhere  had  been  tried  with  conspicuous  lack  of 
success.  Yet  at  the  same  time,  with  a  system  based  upon  collec- 
tivism as  his  was,  he  was  no  less  an  ardent  believer  in  pure  indi- 
vidualism, and  like  all  his  school,  until  his  greatest  disciple  John 
Stuart  Mill,  in  his  Essay  on  Liberty,  demolished  the  whole  Ben- 
thamite theory  of  government,  he  failed  to  perceive  that  col- 
lectivism is  bound  to  destroy  individualism,  because  it  substitutes, 
instead  of  the  domination  of  a  ruler  or  of  a  ruling  class,  the  far 
more  destructive  domination  of  a  generally  unfit  majority. 

In  England  itself  Bentham  was  never  in  touch  with  the  spirit 
of  his  time  or  of  his  race.  He  once  spoke  to  his  disciple  Bowring 
of  the  only  time  that  he  had  met  Edmund  Burke.  "I  met 
Burke  once  at  Phil  Metcalf's,"  said  Bentham;  "he  gave  me 
great  disgust."  This  is  the  sole  impression  that  the  greatest 
English  political  philosopher,  a  man  far  more  entitled  to  the 
appellation  of  jurist  than  Bentham,  made  on  the  man  who  is 
considered  our  foremost  writer  on  jurisprudence.  But  the 
occurrence  is  characteristic  of  Bentham.  He  could  have  no 
sympathy  with  Burke's  cast  of  thought,  he  had  none  of  that 
historical  sense,  that  sense  for  institutions,  that  vast  historic 
imagination,  which  saw  the  political  problems  of  each  country 
as  a  concrete  thing  modified  by  all  the  conditions  of  time, 
place,  and  race,  of  existing  institutions  and  the  influence  of 
the  past  in  molding  existing  sentiments  and  beliefs.  Burke 
"  saw  life  steadily,  and  saw  it  whole."  Bentham  never  com- 
prehended the  lesson  that  Burke  was  continually  teaching, 
that  the  whole  fabric  of  national  life  is  an  actual  organism 
which  acts  upon  individuals  as  they  react  upon  it,  that  a 
nation's  law  is  simply  a  part  and  parcel  of  the  national  life 
and  is  as  it  is  because  that  particular  nation  could  have  no 
other  ;  an  idea  never  better  expresed  than  by  the  old  Roman 
poet :  "  Moribus  antiquis  res  stet  Romana,  virisque."  But  such 
conceptions  were  alien  to  Bentham.  He  once  said  that  Pope's 
famous  line  on  government,  "Whate'er  is  best  administered  is 
best,"  was  the  most  foolish  thing  ever  penned.  Yet  Hooker's 
no  less  famous  saying  on  forms  of  government,  "The  kinds 


536  BENTHAM 

thereof  many  being,  nature  tieth  not  to  any  one,  but  leaveth 
the  choice  as  a  thing  arbitrary,"  is  probably  the  wisest  thing 
ever  said  on  the  subject. 

With  Bentham's  influence  in  England  we  are  not  here  con- 
cerned. What  has  been  said  will  indicate  that  his  influence  out 
of  England  is  due  rather  to  his  political  ideas  than  to  his  legal 
writings.  Such  ascertainable  facts  as  the  evolution  of  the  secret 
ballot  are  easy  to  follow.  The  present-day  ballot  in  certain 
districts  where  the  names  of  hundreds  of  candidates  are  printed 
upon  it,  and  where  a  large  and  cumbrous  volume  of  proposed 
laws  is  submitted  to  the  voter,  would  be  a  development  grotesque 
enough,  if  it  were  not  so  melancholy. 

The  cardinal  reforms  of  the  abolition  of  the  distinction  between 
law  and  equity,  the  simplification  of  legal  pleadings  and  procedure, 
the  creation  of  tribunals  which  act  with  celerity,  the  registration 
of  conveyances  of  real  estate,  the  cheapening  of  legal  processes, 
the  substitution  of  fixed  salaries  for  public  officials  instead  of 
fees,  the  abolition  of  imprisonment  for  debt,  the  creation  of  public 
prosecutors,  the  abolition  of  most  of  the  exclusionary  rules  of 
evidence,  and  to  a  limited  extent  his  ideas  on  codification,  have 
found  a  ready  acceptance  in  countries  which  have  the  English 
law.  But  Bentham  knew  only  the  English  system,  and  all  his 
views  were  coloured  by  a  refraction  through  that  medium.  Even 
his  codes  were  possible  to  him,  only  because  he  could  copy  his 
principles  out  of  that  mass  of  "judge-made"  law  which  he 
affected  to  despise. 

In  the  Germanic  countries  Bentham  has  never  exerted  any 
appreciable  influence.  The  school  of  historical  jurists  which 
has  ruled  there  has  nothing  in  common  with  him.  Its  jurists 
have  searched  out  English  law  for  themselves.  On  what  they 
desired  to  know  his  works  had  nothing  to  tell  them.  Their  codes 
are  constructed,  not  on  Benthamite  principles,  but  according  to 
the  views  of  their  own  jurisconsults.  But  in  certain  of  the  Latin 
countries  Bentham  has  had  an  apparently  powerful  influence. 

The  first  writing  of  Bentham  appeared  in  1776.  It  was  an 
assault  upon  the  complacent  optimism  of  Blackstone's  Commen- 
taries. It  has  no  real  importance.  But  his  next  work,  published 
in  1789,  was  his  Introduction  to  the  Principles  of  Morale  and 
Legislation.  Practically  all  the  main  doctrines  of  Bentham  arc 
contained  in  it.  Just  before  this  time  Bentham  had  met  Etienne 
Dumont,  a  Genevese,  who  became  vastly  interested  in  Bentham's 


BENTHAM  S3  7 

ideas,  and  as  an  earnest  disciple  spent  years  on  Bentham's 
voluminous  manuscripts,  beating  them  into  coherence  and  intelli- 
gibility, cutting  out  their  purely  local  matter  and  giving  them  a 
finished  French  form. 

Through  Dumont,  Bentham's  ideas  became  known  to  Mira- 
beau.  Later  he  became  somewhat  intimate  with  Talleyrand. 
The  fair  and  peaceful  beginning  of  the  French  Revolution  offered 
Bentham  an  opportunity.  He  sent  to  Abbe  Moullet  his  treatise 
on  the  Tactics  of  Deliberative  Assemblies,  and  in  March,  1790,  he 
sent  a  report  for  the  organization  of  the  French  judiciary.  Then, 
in  1791,  he  offered  to  establish  in  France  a  model  prison  after  the 
style  of  his  "Panopticon."  His  scheme  was  printed  by  the 
Assembly,  and  his  ardent  "love  of  humanity  "  was  recognized. 
In  1792  the  title  of  French  citizen  was  conferred  upon  him.  But 
a  legislative  body  that  was  about  to  burst  into  the  atrocities 
of  the  Terror  had  little  use  for  parliamentary  tactics  or  model 
prisons  or  schemes  of  penal  reform.  Bentham  himself  learned 
something  from  the  horrors  of  the  French  Revolution.  He  was 
no  longer  so  radical,  and  he  records  that  he  voted  in  1800  to  make 
Bonaparte  First  Consul. 

In  the  meantime  Dumont  had  been  working  on  his  French 
redactions  of  Bentham's  manuscripts.  In  1802  he  published 
under  Bentham's  name  three  volumes  entitled  Traites  de  Legisla- 
tion civile  et  penale.  Volume  one  contained  the  General  Principles 
of  Legislation  and  Principles  of  a  Civil  Code;  volume  two,  Princi- 
ples of  a  Penal  Code ;  and  volume  three,  the  proposals  for  a  model 
prison.  These  writings  created  a  great  stir  in  Europe,  especially 
in  Spain.  In  1811  Dumont  published  Bentham's  Theory  of 
Punishments  and  Rewards,  the  valuable  part  of  which  wras  due 
to  Beccaria.  Still  later,  in  1816,  was  published  by  the  inde- 
fatigable Dumont  the  Tactics  of  Deliberative  Assemblies  and  the 
Treatise  on  Political  Fallacies.  Finally,  in  1813,  came  the 
Treatise  on  Judicial  Proofs  and  the  Judicial  Organization  and 
Codification.  Practically  all  of  Bentham's  European  reputation 
was  based  upon  Dumont's  publications,  and  Englishmen  dis- 
covered Bentham  by  way  of  the  Continent. 

Dumont  had  striven  in  1802  in  his  Preface  to  soften  Bentham's 
radicalism  and  render  his  views  acceptable  to  moderate  people. 
He  had  expressly  disclaimed  for  Bentham  any  preference  for  any 
particular  form  of  government,  had  claimed  that  Bentham  was 
antagonistic  to  those  political  theories  which  begin  by  attacking 


538  BENTHAM 

existing  institutions,  and  had  asserted  that  Bentham  believed 
that  legal  reforms  can  be  accomplished  only  when  government 
has  stability,  and  that  Bentham's  sole  aim  was  to  prevent  the  over- 
turning of  authority  and  revolutions  in  property  and  power. 
It  may  be  that  this  Preface  is  what  caused  Bentham  long  after- 
wards to  declare  that  Dumont  understood  not  a  word  of  his 
meaning.  Be  that  as  it  may,  it  is  doubtless  true  that  Dumont 
obtained  a  hearing  for  Bentham's  doctrines. 

By  1810  Bentham  was  persuaded  that  his  fame  was  extended 
over  the  civilized  world.  He  thought  that  codes  on  his  principles 
were  being  proposed  in  France  and  Germany.  His  hope  was 
preposterous  as  to  Germany  ;  as  to  France,  he  had  wholly  miscon- 
ceived the  situation.  France — unlike  England — had  no  single 
and  coherent  body  of  law  applicable  throughout  the  whole 
country.  As  Voltaire  said,  a  man  travelling  in  France  changed 
laws  as  often  as  he  changed  horses.  In  such  a  condition  it  is 
apparent  that  a  code  is  the  only  remedy,  and  the  Napoleonic 
Code  was  designed  by  French  lawyers  to  meet  that  condition ; 
but  it  merely  adapted  for  the  whole  country  what  was  found  to 
be  best  in  the  various  local  jurisdictions.  Bentham  never  con- 
ceived of  codification  for  such  reasons  as  existed  in  France.  He 
had  England  in  his  eye.  His  scheme  was  to  abolish  the  legal 
profession,  to  wipe  out  the  law  reports,  and  to  reach  the  Utopia 
where  every  man  could  be  his  own  lawyer.  His  theory  of  judicial 
proofs  had  no  effect  upon  French  law,  for  the  reason  that  France 
had  not  the  English  law  of  evidence.  It  may  be  said  that  so  far 
as  the  actual  law  of  France  is  concerned,  Bentham  had  no  effect 
whatever  ;  for  in  legislation  the  greatest  good  of  the  greatest 
number,  as  a  workable  principle,  comes  in  the  end  to  mean  simply 
that  the  majority  ought  to  have  what  it  wants. 

But  in  the  meantime  Bentham  had  found  a  number  of  disciples 
in  Spain.  Jovellanos,  a  member  of  the  Spanish  Junta,  had  written 
treatises  upon  legislation  in  Bentham's  vein.  Nunez,  the 
Librarian  at  the  University  of  Salamanca,  applied  Bentham's 
ideas  to  a  plan  for  national  education  in  a  manner  quaint  enough  ; 
and  in  1820  he  published  a  volume  on  The  Spirit  of  Bentham, 
which  has  been  characterized  as  the  "best  existing  exposition 
of  Benthamism."  Nunez  had  the  cruelty  to  say  of  the  faithful 
Dumont:  "Sir  Bentham  (sic)  handed  to  Mr.  Dumont  (sic) 
original  MSS.  of  his  theories,  from  which  the  latter  composed 
those  undigested  French  treatises  that  till  now  have  kept  under 


BENTHAM  539 

eclipse  that  light  of  Bentham's  which  glimmered  through  them." 
The  book  on  Prisons  was  translated  into  Spanish  as  early  as  1819, 
and  translations  of  his  other  works  continued  to  appear,  so  that, 
to  quote  Senor  Silvela,  between  1820  and  1845  "no  other  foreign 
author  exercised  in  Spain  so  great  an  authority  as  Bentham." 
Borrow  relates  that  in  1842,  while  travelling  in  Spain,  he  was 
welcomed  by  an  Alcalde  on  Cape  Finisterre,  who  had  upon  his 
shelves  all  the  works  of  the  "  grand  Baintham,"  and  compared 
him  to  Solon,  Plato,  and  even  Lope  de  Vega.  The  latter  com- 
parison seemed  to  Borrow  somewhat  overstrained. 

In  the  period  between  1808  and  1812,  while  Spain  was  in 
revolt  against  Joseph  Bonaparte,  some  attention  was  paid  to 
legislation,  but  it  was  not  until  the  outbreak  against  Ferdinand 
in  1820  that  Bentham's  influence  became  apparent.  The  Con- 
stitution was  restored.  Bentham  sent  to  the  Cortes  a  present 
of  his  collected  writings.  He  wrote  pamphlets  on  Spanish  affairs. 
Then  he  turned  to  Portugal,  which  had  just  adopted  the  Spanish 
Constitution,  freely  criticizing  what  he  considered  its  defects. 
The  Cortes  of  Portugal  received  a  present  of  his  works,  which 
was  gratefully  accepted.  He  wrote  another  letter  to  Spain 
strongly  opposing  a  second  chamber  for  the  Cortes,  but  as  usual 
he  had  England  in  his  eye,  for  he  argued  against  a  House  of 
Peers,  while  the  Spanish  and  Portuguese  had  in  mind  a  second 
representative  chamber. 

In  August,  1820,  the  Spanish  Cortes  entered  upon  the  work 
of  drafting  a  penal  code,  and  Count  Toreno,  the  President  of  the 
Cortes,  addressing  Bentham  as  the  "Light  of  Legislation  and 
Benefactor  of  Man,"  sent  to  Bentham  a  draft  of  the  proposed 
code  for  suggestions.  Bentham's  answer  was  a  querulous 
criticism  of  the  Cortes  for  not  having  applied  to  him.  Bentham 
suggested  to  the  dignified  Spanish  aristocrat  that  he  was  a 
functionary  who  had  points  of  his  own  to  further,  and  that  he 
would  be  likely  to  use  the  suggestions  to  give  support  to  his  own 
views.  The  stately  note  of  cold  politeness,  says  Mr.  Kenny,  in 
which  Toreno  acknowledged  Bentham's  answer,  "  affords  a  fine 
picture  of  Castilian  dignity;  wounded,  yet  still  courteous." 
Bentham  continued  to  pour  out  letters  to  Toreno  against  the 
existing  legislation  of  Spain,  with  an  utter  disregard  for  existing 
conditions.  But  the  political  revolution  in  Spain,  enforced 
by  French  bayonets,  soon  put  an  end  to  Constitution  and 
Cortes. 


540  BENTHAM 

In  the  Spanish  possessions  in  America  Bentham  from  the  first 
took  a  deep  interest.  He  seriously  considered  going  to  Mexico 
in  the  company  of  Aaron  Burr,  who  was  to  become  emperor, 
while  Bentham  was  to  play  the  Tribonian  to  Burr's  Justinian. 
Certainly  Bentham  would  have  fitted  the  role,  for  he  was  a  closer 
approach  to  Tribonian  than  he  was  to  great  philosophical  jurists 
like  Ulpian  or  Papinian.  Miranda,  the  Spanish  revolutionist  in 
South  America,  had  known  Bentham  in  London,  and  Bentham 
would  have  been  glad  to  follow  him  to  Venezuela,  for  he  was 
convinced  that  his  laws  would  be  received  there  with  glad  acclaim, 
but  Miranda  died  in  a  Spanish  prison. 

Bolivar  and  Santander  were  ardent  Benthamites,  and  sedulously 
cultivated  the  Benthamite  plant  of  reform  in  that  most  congenial 
soil.  It  is  computed  that  in  1830  forty  thousand  volumes  of 
Bentham's  works  in  French  were  sold  in  Spanish  America 
alone.  Among  those  races  every  educated  man  studied  his 
writings  as  those  of  another  Lycurgus  or  Solon.  Rivadavia,  the 
legislator  of  Buenos  Ayres,  was  his  pupil ;  Jose  del  Valle,  the 
President  of  Guatemala,  was  another  pupil.  They,  as  well  as 
Andrade,  the  Brazilian  Minister,  corresponded  with  the  sage 
regarding  the  legislation  of  their  States.  The  constitutions  and 
all  of  the  laws  of  the  new  republics  show  traces  of  Bentham's 
influence.  His  works  were  used  as  textbooks  in  the  schools ; 
though,  sad  to  relate,  his  earnest  disciple,  Bolivar,  when  he 
turned  Dictator  in  1826,  forbade  the  use  of  his  master's  works 
in  the  public  schools.  The  remarkable  instability  of  these 
Benthamite  governments  is  probably  the  best  commentary  upon 
the  value  of  Bentham's  political  theories. 

In  the  department  of  the  penal  law  his  influence  has  been  of 
great  and  constantly  increasing  value.  The  amelioration  of 
punishments  and  the  adaptation  of  penalties  to  offences,  through 
the  work  of  Bentham  re-enforcing  Beccaria,  can  be  traced  in  the 
legislation  of  every  civilized  country.  But  this  change  a  careful 
student  of  social  conditions  would  be  more  likely  to  ascribe  to 
the  increasing  density  of  the  population  and  to  the  greater 
efficiency  of  the  police,  acting  in  connection  with  a  greater  and 
oftentimes  mistaken  regard  for  human  life.  It  has  been  claimed 
that  once  his  Panopticon  prison  scheme  was  put  into  successful 
operation  in  Russia.  The  ideas  which  it  embodied — solitary 
confinement,  constant  surveillance,  physical  health  for  prisoners, 
and  their  application  to  laborious  pursuits  are  now  common- 


BEtfTHAM  541 

places  in  all  prison  discipline.  But  those  ideas  belong  not  so 
much  to  Bentham  as  to  Howard. 

One  proposal  of  Bentham,  that  of  reducing  and  fixing  the 
armed  force  of  nations,  now  seems  to  have  some  chance  of 
realization.  He  proposed  it  in  the  closing  years  of  the  eighteenth 
century,  a  singularly  inopportune  time.  Bismarck  in  1877 
sneered  at  its  utter  impracticability  ;  yet  the  impending  danger 
of  national  bankruptcies  may  bring  it  about.  In  the  kindred 
realm  of  "  international  law, "  a  phrase  which  Bentham  invented, 
he  has  been  a  living  force.  It  is  apparent  that  a  Benthamic 
code  is  the  only  solution  for  a  law  of  nations,  and  as  early  as 
1789  Bentham  had  worked  out  a  theory  of  international  law, 
which  Wheaton  has  published  in  his  History.  All  subsequent 
attempts  at  codification  of  the  law  of  nations  are  largely  based 
on  Bentham's  proposals. 

Bentham 's  advice  to  France  in  1793  to  emancipate  her  colonies 
as  a  sedative  for  her  evil  condition  has  been  answered  by  the  vast 
colonial  development,  not  only  of  France,  but  of  Germany  and 
England.  He  was  not  any  more  successful  in  his  advocacy  of 
the  abolition  of  the  jury,  whose  value  in  reconciling  the  citizen 
to  a  system  of  law  he  never  seems  to  have  understood.  His 
proposal  to  abolish  banking  and  bankers  as  "always  hurtful  to 
every  State  "  shows  that  he  never  understood  what  has  been  the 
most  potent  engine  in  the  development  of  modern  industrialism. 
Dumont  had  a  saying  of  anything  that  seemed  to  him  good,  "C'est 
convainquant,  c'est  la  verite  meme,  c'est  presque  Benthamique," 
yet  nothing  could  be  more  wholly  absurd  than  Bentham's  proposal 
to  Mehemet  Ali  in  1828  to  give  to  Egypt  a  Constitution  minted 
on  a  Benthamite  die.  One  of  the  humorous  applications  of 
Bentham's  teachings  is  that  Stanhope  carried  with  him  to  Greece 
the  Table  of  the  Springs  of  Action,  with  which  he  tried  to  in- 
doctrinate Byron,  then  fighting  for  the  Greeks ;  but  (as  Leslie 
Stephen  dryly  remarks)  "  the  poet,  however,  thought  with  some 
plausibility  that  he  was  a  better  judge  of  human  passions  than 
the  philosopher."  Bentham's  impassioned  address  to  the  Greeks 
was  no  doubt  of  no  little  influence  in  foisting  upon  them  their 
unfortunate  career  as  a  pitiable  republic.  Bentham's  admirers 
would  gladly  forget  that  in  1830  he  advocated  putting  the  public 
offices  up  for  sale  to  the  highest  bidder.  In  these  United  States 
under  our  newly  devised  system  of  primary  balloting,  that  par- 
ticular one  of  the  Benthamite  dreams  will  probably  become  a 
reality. 


542  BENTHAM 

It  is  painful  to  be  compelled  to  admit  that  he  is  exercising 
so  little  influence.  But  the  reasons  are  not  far  to  seek.  The 
ultimate  dogmas  of  Bentham  are  mere  words  without  meaning. 
The  greatest  good  to  the  greatest  number  means  absolutely 
nothing.  It  is  one  thing  to-day  in  any  given  country,  it  is 
another  thing  to-morrow.  For  one  race  it  produces  a  par- 
ticular result,  for  another  race  it  leads  to  a  wholly  different 
result.  In  legislation  it  is  as  barren  and  jejune  as  in  morals. 
In  morals  it  means  that  a  man  should  do  what  is  right,  while 
in  legislation  it  means  nothing  more  than  that  legislation  should 
be  good.  The  argument  in  its  last  analysis  becomes  one  that 
whatever  is  right  from  a  moral  standpoint,  or  whatever  is 
good  from  a  legislative  standpoint,  decides  what  makes  for 
the  greatest  happiness  of  the  greatest  number.  It  is  no  more 
definite  or  satisfying  than  to  say  that  a  legislator  should  strive 
for  the  good  of  his  country.  On  such  a  principle  everything 
that  Bentham  attacked  can  be  defended,  just  as  he  had  no  diffi- 
culty in  defending  duelling  as  furnishing  a  remedy  for  a  wrong 
that  the  law  did  not  redress.  The  difficulty  is  never  in  being 
ready  to  enact  laws  that  are  good ;  the  real  trouble  is  to  settle 
what  laws  are  good. 

Then,  too,  Bentham's  balancing  of  pains  and  pleasures,  his 
various  sanctions  for  a  law  as  satisfying  his  test,  by  conducing 
to  physical,  social,  political,  or  religious  pleasure  rather  than 
detriment,  have  not  proved  of  any  particular  value,  except  that 
in  their  application  to  the  penal  law  they  have  some  sort  of 
surface  validity.  But  upon  analysis  they  will  be  found  to  be 
resolvable  into  the  proposition,  so  far  as  penalties  are  concerned, 
that  the  punishment  of  an  offender  should  go  no  farther  than  the 
interest  of  the  offender  and  the  general  interest  of  society  demand. 
To  reconcile  those  considerations  is  the  real  difficulty,  although 
by  Bentham's  formulae  it  can  very  plausibly  be  maintained  that 
a  criminal  who  has  such  a  congenital  physical  organization  as  to 
be  at  all  dangerous  to  society  should  be  put  to  death.  Those 
Russian  enthusiasts  who  saw  so  much  to  admire  in  Bentham's 
writings  found  it  sufficiently  painful  to  make  the  wholly  useless 
attempt  to  reconcile  Bentham's  political  theories  with  the  main- 
tenance of  the  Czar's  autocracy.  Men  are  more  easily  satisfied 
with  words  than  with  facts.  The  difficulty  in  legislation  has 
always  been  that  many  are  called  to  the  task,  but  few  are  chosen. 
Average  men  find  a  Cleon  or  a  Bentham  far  more  convincing 
than  an  Aristotle  or  a  Burke. 


BENTHAM  543 

But  although  Bentham  died  consoling  himself  with  the  thought 
that  his  efforts  to  uplift  the  world  had  been  thwarted  by  a  base 
conspiracy  of  George  III.,  he  yet  had  his  happy  moments.  In 
1823  he  visited  Paris,  where  the  venerable  sage,  with  his  long 
white  hair  and  snuff-coloured  garments,  excited  among  the  lively 
and  impressionable  Gauls  the  greatest  enthusiasm.  One  day 
during  his  stay,  casually  and  unannounced,  he  visited  one  of  the 
higher  courts.  The  whole  body  of  advocates,  that  legal  pro- 
fession whom  he  had  never  ceased  to  denounce,  generously  rose 
and  paid  to  him  the  highest  marks  of  respect.  The  judges  upon 
the  bench,  whose  function  and  authority  he  had  done  so  much 
to  undermine,  invited  him  to  the  seat  of  honour  ;  and  there  we 
shall  leave  him. 


MITTERMAIER1 

CARL  JOSEPH  ANTON  MITTERMAIER  was  born  at  Munich  on 
August  5,  1787.  His  father  was  an  apothecary,  a  man  of  ex- 
cellent training  in  natural  science,  with  a  quick  intelligence  and 
a  disposition  benevolent  almost  to  eccentricity.  His  mother 
is  depicted  to  us  as  a  busy  woman,  with  a  clear,  calm,  and  shrewd 
understanding.  His  father's  brother-in-law,  Zimmermann,  was 
a  seafaring  man,  and  had  been  helmsman  to  Captain  Cook,  the 
celebrated  circumnavigator  of  the  world.  The  sailor's  stirring 
description  of  distant  lands  found  the  boy  a  receptive  hearer, 
and  served  to  awaken  that  yearning  for  foreign  travel  which 
Mittermaier  kept  to  his  last  days. 

Mittermaier's  Life. — His  father  died  at  an  early  age ;  and 
upon  the  second  marriage  of  his  mother  the  youth  was  sent  to  a 
school  kept  by  a  clergyman,  a  man  of  stern  and  narrow  mind, 
whose  wide  acquaintance,  however,  with  ancient  and  modern 
tongues  served  to  instil  into  his  pupil  the  liking  and  knowledge 
of  foreign  languages.  His  later  linguistic  accomplishments,  the 
product  of  the  seed  thus  sown,  were  unusual  in  a  German 
scholar,  and  secured  for  him  the  friendship  and  admiration  of 
many  foreigners  whose  acquaintance  he  made  on  his  numerous 
journeys  and  in  his  varied  correspondence. 

On  entering  the  Munich  Lyceum,  he  applied  himself  with  zest 
to  natural  science ;  this  he  never  forsook  in  later  years,  endeavour- 

1  The  author  of  this  biographical  sketch  was  a  colleague  of  Mittermaier 
at  Heidelberg.  Dr.  Goldschmidt  himself  became  the  most  famous  German 
jurist  of  his  day  in  commercial  law,  and  at  his  death,  twenty  years  ago,  was 
one  of  Europe's  greatest  legal  scientists.  The  article  here  translated  was 
published  first  in  the  Archiv  fur  civilistische  Praxis,  1867,  vol.  vii.,  p.  417,  and 
afterwards  in  the  author's  Vermischte  Schriften,  1901,  vol.  i.,  p.  653. 

A  few  lines  have  been  inserted  from  the  Notice  of  Mittermaier's  life  given 
in  the  Preface  to  the  French  translation  (1868)  of  Mittermaier's  Criminal 
Procedure  in  England,  Scotland,  and  the  United  States ;  that  translation 
was  made  by  A.  Chauffard,  Judge  at  Albi. 

The  present  translation  is  by  Dr.  Victor  von  Borosini,  of  Hull  House, 
Chicago. 

544 


CARL  JOSEPH  ANTON  MITTERMAIER 


MTTTERMAIER  545 

ing  always  to  turn  it  to  account  in  his  legal  studies.  His  plan 
then  was  to  become  a  mining  engineer,  and  he  took  the  pre- 
liminary examination  for  this  when  he  was  thirteen.  But  on 
account  of  his  apparently  weak  constitution  his  stepfather  refused 
him  permission  to  follow  either  this  occupation  or  that  of  a 
physician,  which  he  next  preferred.  At  sixteen  he  entered  the 
law  course  of  the  University  of  Landshut,  but  he  attended  the 
lectures  on  anatomy  and  medicine  as  well  as  those  on  law  and 
philosophy.  His  scanty  resources  obliged  him  to  earn  money 
by  giving  private  lessons  ;  but  amidst  all  these  tasks  he  showed 
even  at  this  stage  the  indefatigable  nature  of  his  industry 
by  producing  while  yet  a  student  a  treatise  (never  printed)  on 
Natural  Law.  As  a  private  tutor  he  came  into  close  relations 
with  Von  Zentner  (then  minister  of  State,  formerly  professor  at 
Heidelberg)  who  took  a  kindly  interest  in  his  welfare.  On  com- 
pleting his  course  at  the  University  he  practised  at  Munich, 
mostly  in  criminal  cases,  before  the  provincial  court  of  the  Au 
suburb.  His  thorough  knowledge  of  foreign  tongues  attracted 
the  attention  of  the  great  criminalist  of  the  time,  Anselm  von 
Feuerbach,  who  had  come  from  the  University  of  Landshut  to 
draft  the  criminal  code  for  the  Bavarian  government.  Feuerbach 
made  him  his  secretary,  with  the  special  work  of  making  excerpts 
from  the  French  and  Italian  codes  and  draft-codes. 

Mittermaier  had  in  view  an  academic  career,  and  planned 
therefore  to  train  himself  thoroughly  by  pursuing  studies  at  some 
other  university.  The  government  allotted  him  a  travelling 
scholarship  of  600  florins  ;  not  so  much  indeed  with  a  view  to 
seeing  any  productive  results,  as  merely  to  recognize  his  merits, 
and  to  gladden  his  brief  remaining  span  of  life  ;  for  at  this  time 
the  fragile  youth  of  twenty-one  (as  he  himself,  grey  with  years, 
afterwards  recounted  with  much  zest  on  the  occasion  of  the 
fiftieth  anniversary  of  his  doctorate)  was  regarded  by  all,  himself 
included,  as  doomed  by  an  incurable  tuberculosis  ;  and  a  year 
longer  at  the  most  was  allotted  to  him  on  earth. 

At  Zentner's  suggestion,  he  went  to  Heidelberg,  and  there 
studied  under  such  masters  as  Martin,  Heise,  Thibaut,  Zachariae, 
and  Kliiber.  To  enlarge  his  income,  he  continued  to  do  private 
tutoring  ;  and  the  consequence  of  this  overwork  was  a  dangerous 
attack  of  fever.  While  still  convalescent,  he  received  an  ap- 
pointment from  the  Bavarian  government  as  professor  of  the 
newly-founded  University  of  Innsbruck.  He  accordingly  applied 

36 


546  MTTTEBMAIEE 

for  his  doctorate  at  Heidelberg,  which  was  awarded  on  March  29, 
1 809.  His  thesis  was  entitled  Void  Judgments  in  Criminal  Cases.1 
His  first  large  treatise,  likewise  in  the  field  of  criminal  procedure, 
dates  in  the  same  year — Theory  of  Proof  in  Criminal  Procedure,2 
But  through  the  publishers'  bankruptcy  it  did  not  appear 
until  1821,  when  Heyer  of  Darmstadt  published  it  under  the 
same  title. 

Before  Mitteimaier  entered  on  his  duties  at  Innsbruck,  the 
Tyrol  had  been  freed  from  Bavarian  rule  by  a  popular  uprising  ; 
so  that  the  young  jurist  was  left  without  an  appointment.  After 
practising  for  a  while  with  a  barrister  at  Munich,  he  became 
privat-docent  at  Landshut.  After  refusing  a  call  to  Kiel,  he 
received  the  Landshut  professorate,  which  had  been  promised 
him.  In  the  ensuing  year  he  made  his  choice  of  a  life  companion 
by  marrying  the  sister  of  a  friend  and  colleague,  the  famous 
surgeon,  Ph.  F.  von  Walt  her  ;  and  the  union  proved  to  be  one  of 
unbroken  happiness.  The  marriage  was  blessed  with  seven 
children. 

For  ten  years  he  pursued  at  Landshut  an  academic  career  of 
the  most  productive  activity.  Young  as  he  was,  the  University 
honoured  him  by  electing  him  rector  three  times  in  succession. 
Moreover,  the  administration  of  the  large  properties  of  the  Uni- 
versity, hitherto  managed  by  the  government,  was  through  his 
earnest  efforts  restored  to  the  University  and  confided  to  his 
care.  The  scope  of  his  courses  was  extensive.  The  course 
on  Roman  Legal  History,  which  he  had  begun  at  the  instigation 
of  Savigny  (his  colleague  at  Landshut)  he  soon  gave  up,  for  he 
realized  that  it  interfered  with  the  necessary  concentration  of  his 
efforts.  But  he  gave  courses  in  Criminal  Procedure,  in  German 
Private  Law  and  Legal  History  (one  of  the  earliest  courses  on 
this  subject),  and  also  (after  von  Goenner  had  been  appointed 
in  1810  on  the  Legislative  Committee  in  Munich)  in  Civil  Proce- 
dure. His  already  numerous  writings  of  this  period  dealt  with 
these  three  subjects. 

In   the  first  group  fall :  Handbook  of  Criminal  Procedure,3 

1  De  nullitatibus  in  causis  criminalibus  observat.  spec.,  Heidelberg,  1809. 

2  Theorie  des  Beweises  im  peinlichen  Prozess,  nach  den  gcmeinen  positiven 
Oesetzen  und  den  Bestimmungen  der  Franzoesischen  Civilgesetzgebung,  2  parts, 
Mannheim,  1809. 

3  Handbuch  des  peinlichen   Prozesses,   mit  vergleichender   Darstellung   des 
gemeinen  deutschen  Rechts  und  der  Bestimmungen  der  Franzosischen,  Oester- 
reichischen,  Bayrischen  und  Preussischen  Kriminalgesetzgebung,  Bd.  I.,  Abth.  i. 
and  ii.,  Heidelberg,  1810 ;  Bd.  ii.,  Heidelberg,  1812. 


MTTTERMAIER  547 

Introduction  to  the  Art  of  Defensive  Advocacy  in  Criminal  Cases,1 
and  Public  and  Oral  Procedure  and  the  Jury  System?1  Here 
belongs  also  his  editorship  of  the  Archiv  fur  Kriminalrecht,  which 
in  1816  he  took  over  with  Konopak  and  Kleinschrod  ;  this  journal, 
founded  in  1798,  was  now  called  Neues  Archiv  fur  Kriminal- 
recht (16  vols.,  1816-1833),  and  afterwards  Archiv  des  Kriminal- 
rechts,  Neue  Folge  (24  vols.,  1834-1857).  Mittermaier  remained 
throughout  at  its  head.  In  the  second  group  belong  his  Intro- 
duction to  the  Study  of  German  Legal  History3  and  Sketch  of  a 
Scientific  Treatment  of  German  Private  Law.4  In  the  third  gr  oup, 
Civil  Procedure,  no  elaborate  book  was  published  in  this  period, 
but  in  1818  he  founded  with  Gensler  and  Schweitzer  the  Archiv 
fur  Civilistische  Praxis,  whose  chief  editor  he  was,  after  his 
removal  to  Heidelberg,  until  his  death.  The  first  volumes  contain 
from  his  pen  numerous  abstracts  of  trials,  reviews  of  the  litera- 
ture on  procedure,  and  of  codes  and  draft  codes  on  procedure  and 
on  mortgages. 

He  accepted  in  1819  a  chair  in  the  newly  established  University 
of  Bonn,  after  he  had  refused  a  call  to  Halle  ;  thus  finishing  his 
career  in  Landshut.  He  was  the  first  dean  of  the  faculty  of  law 
in  Bonn.  During  his  two  years  in  the  Rhenish  city,  he  began 
to  work  on  two  of  his  most  important  books  :  Textbook  of  German 
Private  LauP  and  German  Common  Civil  Procedure. & 

At  Bonn  he  lectured  on  German  Private  and  Criminal  Law  and 
Procedure,  laying  stress  on  practical  exercises,  including  legal 
rhetoric  ;  and  as  the  Qode  Napoleon  was  there  in  force,  he  thor- 
oughly studied  the  French  law  and  its  procedure.  As  provisional 
proctor  of  the  university,  he  was  forced  to  take  an  official  part 
in  the  lamentable  prosecutions  for  sedition,  which  during  those 
years  were  very  actively  carried  on  in  Bonn  ;  and  he  disliked  his 
position  for  this  reason.  He  refused  a  call  to  the  Supreme  Court 

1  Anleitung  zur  Vertheidigungskunst  im  Kriminalprozess,  Landshut,  1814  ; 
2  Auflage,  1820. 

2  Ueber  die  offentliche  und  mundliche  Bechtspflege  und  das  Geschtvorenen- 
gericht  in  Vergleichung  mit  dem  Deutschen  Strafverfahren,  Landshut,  1819. 

3  Einleitung  in  das  Studium  der  Geschichte  des  germanischen  Rechts,  Landshut, 
1812. 

4  Versuch  einer  wissenschaftlichen  Behandlung  des  Deutschen  Privatrechts, 
mit  einem  Grundriss  zu  Vorlesungen,  Landshut,  1815. 

5  Lehrbuch  des  Deutschen  Privatrechts,  Landshut,  1821. 

6  Der  gemeine  deutsche  biirgerliche  Prozess  in  Vergleichung  mit  dem  franzo 
sischen  Civilverfahren  und  mit  den  neuesten  Fortschritten  der  Prozessgesetzge.- 
bung,  1  Boitrag,  Bonn,  1820  ;  2  Beitrag,  1821. 


548  MITTEBMAIER 

of  the  four  Free  Cities  in  Liibeck ;  but  accepted  in  1821  a  call 
to  the  University  of  Heidelberg. 

Here  he  taught  for  forty-six  years,  interrupted  only  by  a  short 
parliamentary  activity.  In  the  winter  of  1847  he  lectured  only 
for  a  few  months,  on  account  of  the  initial  sessions  of  the  Diet 
of  Baden  ;  in  the  following  summer,  and  in  the  winter  of  1848-49, 
he  did  not  teach  at  all,  on  account  of  his  attendance  at  the 
German  Parliament.  In  spite  of  the  distance,  and  the  poor 
communications  between  Karlsruhe  and  Heidelberg,  he  lectured 
regularly  while  a  member  of  the  Diet  of  Baden.  His  yearly 
course  of  lectures  covered  German  Private  Law,  Criminal  Law 
and  Procedure,  Civil  Law ;  he  also  held  seminars  in  Civil  and 
Criminal  Procedure.  On  arriving  at  the  age  of  sixty-four  he 
gradually  restricted  this  immense  activity.  German  Private 
Law  was  lectured  upon  for  a  last  time  in  the  summer  of  1850. 
Civil  Procedure  in  the  winter  of  1855-56,  the  Methods  of  a  Trial 
Judge  in  the  summer  of  1854.  His  seminar  of  Criminal  Proce- 
dure met  for  the  last  time  during  the  winter  of  1854-55.  From 
1856  until  his  death  he  lectured  during  the  summer  on  Criminal 
Procedure ;  during  the  winter  on  Criminal  Law,  besides  giving 
public  courses  on  the  Jury  System,  English  Procedure,  Curious 
Criminal  Cases,  and  some  important  doctrines  of  Criminal  Law 
(murder,  political  and  property  crimes).  He  was  from  1821 
until  his  death  at  the  head  of  the  formerly  much  consulted 
Spruchkollegium . 

His  literary  activity  was  prodigious.  The  following  works 
begun  in  Landshut  and  in  Bonn,  were  either  continued,  or 
brought  out  in  enlarged  and  thoroughly  revised  editions  :  Prin- 
ciples of  German  Common  Private  Law,  including  Commercial 
Law,  Bills  of  Exchange,  and  Maritime  Law  ;x  The  German  Common 
Law  of  Civil  Procedure  ;2  German  Criminal  Procedure  ;3  Doctrine 
of  Proof  in  German  Criminal  Procedure  ,A  An  Introduction  of  the 

1  Qrundsdtze  des  gemeinen  deutschen  Privatrechts  mil  Einschluss  des  Handels-, 
Wechsd;  und  Secrechts,  Landshut,  1824,  7th  ed.,  1847. 

2  Der  gemeine  deutsche  burgerliche  Prozess,  Erster  Beit  rag,  2  Auflage,  1822 ; 
3  Auflage,  1838  ;  Zweiter  Beitrag,  2  Aufl.,  1827  ;  3  Aufl.,  1838  ;  Dritter  Beitrag, 
Bonn,  1823  ;  2  Aufl.,  1832  ;  Vierter  Beitrag,  Bonn,  1826  ;  2  Aufl.,  1840. 

3  Das  Deutsche  Strafver/ahren  in  seiner  FortbUdung  durch  Gerichtsgebrauch 
und  Partikulargesetzbucher  und   in   genauer  Vergleichung  mit  dem  englischen 
und  franzosischen  Strafverfahren,  2  Abth.,  Heidelberg,  1827  ;  2  Aufl.,  1832-33  ; 
3  Aufl.,  1839-40  ;  4  Aufl.,  1845-46. 

4  Die  Lehre  vom  Beweise  in  deutschen  Strafprozess  nach  dessen  Fortbildung 
durch  Gerichtsgebrauch  und  deutsche  Qesetzbucher  in  Vergleich  mit  den  Ansichten 


MTTTEEMAIER  549 

Art  of  Defensive  Advocacy.1  Besides  numerous  contributions  to 
periodicals,  we  must  note  the  following  publications,  of  varying 
size,  all  of  which,  with  one  exception,  pertain  to  Criminal  Law, 
and  mostly  to  Criminal  Procedure  :  Mental  Alienation  ?  The 
•present  Condition  of  Criminal  Legislation  in  Germany  ;3  The 
Principle  of  Mental  Alienation  in  Criminal  Law  ;4  The  Progress 
of  Criminal  Legislation  *  Conditions  in  Italy  ;6  Oral  Procedure, 
the  Theory  of  Accusation,  Publicity,  and  the  Jury  System  ;7  Essays 
on  Criminal  Law  ;8  The  Present  System  of  Prisons  in  England  ;Q 
Legislation  and  Practice  in  Criminal  Cases  ,ao  Improvement  of 
Prisons  ^  The  Present  State  of  the  Prison  Question  ^  Capital 


des  englischen  und  franzosischen  Strafverfahrens,  Darmstadt,  1834.  Among 
the  numerous  translations  of  this  are  :  Traite  de  la  preuve  en  matiere  criminelle, 
by  Alexandre,  Paris,  1848  ;  Teoria  delta  prova  nel  processo  penale,  by  F.  Am- 
brosoli,  Milano,  1858  ;  Tratado  de  la  prueva  materia  criminal,  Madrid,  1851. 

1  Anleitung  zur  Verteidigungskunst,  3  Aufl.,  1828 ;  4  Aufl.,  1845.     Italian 
translation :    Guida  alVarte  della  difesa  criminale,  by  C.  F.  Gabba,  Milano 
1858. 

2  Disquisitio  de  alienationibus  mentis  quatenus  ad  jus  criminale  spectant, 
Heidelberg,  1825.     (Rectoral  address.) 

3  Ueber  den  neuesten  Stand  der  Kriminalgesetzgebung  in  Deutschland. 

4  De  principio   imputationis  alienationum  mentis  in  jure  criminali  recte 
constituendo,  Heidelberg,  1837.     (Electoral  address.) 

5  Die  Strafgesetzgebung  in  Hirer  Fortbildung  gepruft,  nach  den  Forderungen 
der   Wissenschaft  und  nach  den  Erfahrungen  ueber  den   Werthneuer  Gesetge- 
bungen,  und  uber  die  Schunerigkeiten  der  Kodifikation  mit  vorzuglicher  Ruck- 
sicht  auf  den  Gang  der  Beratungen  von  Entwiirfen  der  Strafgesetzgebung  in 
konstitutionellen  Staaten,  Erster  Beitrag,  Heidelberg,  1841  ;  Zweiter  Beitrag, 
1843. 

6  Italienische    Zustdnde,    Heidelberg,     1844.     Italian    translation :     Delle 
condizioni  d' Italia,  by  P.  Mugna,  Milano,  1845. 

7  Die  Mundlichkeit,  das  Anklageprinzip,  die  Oeffentlichkeit  und  das  Gesch- 
worenengericht,  in  ihrer  Durchfuhrbarkeit  in  den  verschiedenen  Gestzgebungen 
dargestellt  und  nach  den  Forderungen  des  Rechts  und  der  Zweckmdssigkeit  mit 
Riicksicht  auf  die  Erfahrungen  der  verschiedenen  Lander  gepruft,  Stuttgart, 
1845.     Italian  translation :  II  processo  orale,  accusatorio  publico  e  per  giurati, 
Modena,  1848. 

8  Vier   Abhandlungen   aus   dem   Strafrecht.     Als   Einleitung  zur   neuesten 
Ausgabe  von  Feuerbach's  Strafrechtsfdlle,  Frankfurt  a/M.,  1849. 

9  Der  neueste  Zustand  der  Gefdngniseinrichtungen  in  England  und  Englische 
Erfahrungen  uber  Einzelhaft,  Heidelberg,  1850. 

10  Die  Gesetzebung  und  Rechtsubung  uber  Strafverfahren,  nach  ihrer  neuesten 
Fortbildung  dargestellt  und  geprueft,  Erlangen,  1856. 

11  Die    Gefdngnisverbesserung,    insbesondere    die    Bedeutung    und    Durch- 
fiirhrung  der  Einzelhaft  im  Zusammenhang  mit  dem  Besserungsprinzip,  nach 
den  Erfahrungen  der  verschiedenen  Strafanstalten,  Erlangen,  1858. 

12  Der  gegenvjdrtige  Zustand  der  Gefdngnisfrage,  mit  Rucksicht  auf  die  neuesten 
Leistungen  der  Gesetzgebung  und  Erfahrungen  ueber  Gefdngniseinrichtung  mit 
besonderer  Beziehung  auf  Einzelhaft,  Erlangen,   1860.     Italian  translation: 
Stato  attuale  della  questione  sulle  carceri,  by  F.  Benelli,  Florence,  1861. 


550  MTTTERMAIER 

Punishment?  Experience  Relating  to  the  Efficiency  of  Juries  in 
Europe  and  in  America  ;2  English,  Scotch,  and  American  Criminal 
Procedure.3 

Mittermaier  attached  great  importance  to  this  last-named 
book,  which  is  full  of  personal  observations  made  during 
his  sojourn  in  England,  and  embodies  the  results  of  his  corre- 
spondence with  jurists  in  the  United  States.  Besides  giving  a 
vivid  and  true  picture  of  English  judicial  customs  and  of  the 
administration  of  law,  he  analyzes  in  an  exceedingly  lucid  way 
the  origin,  development,  and  actual  state  of  the  English  legal 
system,  especially  with  regard  to  the  jury.  Every  chapter  of 
the  book  proves  that  it  was  written  after  a  thorough  personal 
examination  of  the  most  important  institutions. 

Systems  of  Procedure. — Mittermaier 's  remarkable  preface  gives 
us  in  concise  form  his  extremely  comprehensive  statement  of  the 
fundamental  principles  of  English,  Scotch,  and  American  Criminal 
Procedure,  combined  with  a  discussion  as  to  the  possible  adoption 
of  some  of  the  principles  by  France  and  the  German  States. 
As  an  example  of  his  lucid  style,  judicial  attitude  of  mind,  and 
shrewd  penetration  in  practical  affairs,  we  subjoin  a  translation 
of  this  Preface  (from  the  French  edition) : 

"  In  order  to  carry  out  efficiently  the  administration  of  criminal 
justice,  criminal  procedure  should  be  based  on  the  principles  of 
responsible  accusation,  oral  trial,  and  publicity.  A  judicial  organi- 
zation in  accord  with  these  principles  is  needed  ;  by  which  speedi- 
ness  of  trials,  independence  of  judges,  a  carefully  worked  out  system 
of  jurisdiction,  and  uniformity  of  procedure  and  decisions  are 
guaranteed.  These  problems  may  be  solved  in  different  ways. 
Legal  history  shows  us  two  entirely  different  solutions. 

"  In  the  first  system  we  find  a  judicial  organization  in  which  the 
administration  of  justice  in  a  given  territory  is  subjected  to  the 
jurisdiction  of  a  superior  court  as  a  centre,  on  which  all  other  courts 
depend.  It  presupposes  the  most  active  co-operation  of  the  people 
at  large  in  following  up  criminals,  and  necessitates  in  the  preliminary 
proceedings  the  principles  of  responsible  accusation  and  of  publicity. 

1  Die  Todesstrafe,  nach  dem  Ergebniss  der  wissenschafttichen  Forschung, 
der  Fortechritte  der   Gesetzgebung  und   der   Erfahrungen,   Heidelberg,    1862. 
Many  translations,  including:  De  doodstoaf,  by  J.  B.  Vos,  Leiden,  1863; 
La  pena  di  morte,  by  Carrara,  Lucca,  1864 ;  Capital  Punishment,  by  T.  M. 
Moir,  London,  1865  ;  La  peine  de  mort,  by  Leven,  Paris,  1865. 

2  Erfahrungen  uber  die  Wirlcsamlceit  der  Schwurgerichte  in  Europa  und  in 
Amerika,  uber  ihre  Vorzuje,  Mangel  und  Abhulfe,  3  Hefte,  Erlangen,  1864-65. 
Russian  translation  by  Nestor  Lamansky,  St.  Petersburg,  1866. 

3  Das  Englische,  Schottische  und  Amerikanische  Strafverfahren  im  zusam- 
menhang  mit  den  politischen,  sitilichen  und  sozialen  Zustdnden  und  die  in  den 
Einzelheiten  der  Rechtsubung  dargestellt,  Erlangen,  1851. 


MITTERMAIEB  551 

It  regards  as  indispensable  a  formal  trial,  oral  examination,  and 
responsible  accusation.  The  presiding  judge,  who  questions 
neither  the  accused  nor  the  witnesses,  directs  the  trial ;  the  jury's 
findings  are  not  confined  to  answers  to  specific  interrogatories,  but 
after  receiving  from  the  presiding  judge  an  instruction  upon  all  the 
important  legal  points  in  the  case,  they  give  a  general  verdict  on 
the  guilt  of  the  accused,  after  an  examination  of  the  facts  according 
to  the  rules  of  evidence. 

"  The  second  system  is  based  on  a  logical  division  of  jurisdiction 
between  different  courts,  organically  linked  together,  and  on  the 
assistance  of  a  large  staff  of  court  officers,  including  a  representative 
of  the  State,  with  sufficient  powers  for  the  discovery  of  crimes. 
It  requires  a  secret  preparatory  investigation,  which  therefore  is 
more  of  an  inquisitorial  character,  and  furnishes  reports  to  be  used 
for  what  they  are  worth  at  the  trial.  The  oral  and  public  trial  is 
based  on  a  charge  emanating  from  a  magistrate,  and  is  directed  by 
the  presiding  Judge  of  the  trial  court,  who  gives  the  final  instruction 
to  the  jury.  The  latter's  jurisdiction  is  limited  to  the  most  serious 
criminal  offences.  Not  restricted  by  legal  proofs,  they  render 
their  verdict  freely  upon  what  is  generally  called  '  intimate  con- 
viction,' and  in  the  form  of  replies  to  the  president's  interrogatories. 

"  The  first  system,  corresponding  to  Roman  law  principles,  is 
adopted  in  England,  Scotland,  and  the  United  States.  The  second 
is  the  basis  of  French  and  German  codes. 

"  The  first  mentioned  system  appears  in  three  different  varieties. 

"  The  first  of  those  (adopted  in  England)  is  a  product  of  ancient 
institutions,  which  in  course  of  time  have  been  improved  ;  it  is  based 
on  the  principle  of  responsible  accusation  by  private  individuals, 
and  the  logical  consequences  of  the  latter's  application.  It  gives 
much  discretionary  power  to  the  judge  in  applying  the  law.  It 
guarantees  the  justice  of  verdicts  by  submitting  the  charge  to  the 
approval  of  a  grand  jury,  and  by  requiring  that  the  verdict  of  guilt 
be  only  binding  in  case  the  petty  jury  is  unanimous. 

"  The  second  variety  (adopted  in  Scotland)  requires  the  action  of 
a  superior  court  officer,  who  first  determines  whether  the  informa- 
tion gained  through  a  secret  preparatory  investigation  warrants 
an  accusation  or  not.  The  prosecution  depends  therefore  not  upon 
a  grand  jury,  but  upon  this  officer  alone.  At  the  trial  itself,  counsel 
for  the  defence  and  public  prosecutor  enjoy  the  same  privileges  ; 
the  interests  of  the  defence  are  protected  in  the  most  adequate 
way.  A  majority  of  the  jury  renders  a  valid  verdict. 

"  The  third  system  (as  found  in  the  United  States)  is  on  the  lines 
of  the  English  law  ;  it  is  marked,  however,  by  a  different  and  simpler 
system  of  judicial  organization,  by  the  use  of  public  prosecutors, 
and  by  great  solicitude  for  the  rights  of  the  defence.  It  regulates 
by  law  what  is  left  in  England  to  judicial  discretion,  and  rejects 
several  antiquated  distinctions  preserved  in  English  procedure. 

"Every  one  interested  in  the  progress  of  criminal  legislation 
must  study  the  English  procedure.  German  lawgivers  are  accus- 
tomed to  take  French  laws  as  models.  Satisfied  with  imitating 


552  MTTTERMAIEB, 

these,  they  never  study  English  law,  whose  importance  was  not 
appreciated  in  France.  French  lawgivers  failed  to  grasp  the 
national  spirit  of  the  law  in  England  and  its  intimate  relation  with 
the  moral  development  and  the  political  and  social  customs  of  the 
country.  If  we  study  the  provisions  of  French  criminal  procedure, 
we  find  undoubtedly  many  of  the  improvements  which  the  English 
law  presents  ;  for  instance,  a  very  good  judicial  organization,  with 
a  wise  co-ordination  of  jurisdiction.  But,  when  we  look  at  the 
spirit  of  French  and  English  criminal  procedure,  and  then  compare 
its  application  in  the  two  countries,  we  notice  many  discrepancies. 
Frequently  rules  of  the  French  code  are  in  flagrant  contradiction 
with  principles  which  underlie  the  corresponding  rules  in  England 
and  guarantee  their  efficiency.  In  France,  many  of  these  rules 
have  not  a  natural  basis  ;  in  other  words,  institutions  are  lacking 
which  are  the  necessary  correlative  to  the  same  rules  in  England  ; 
the  efficiency  of  the  French  rules  is  often  handicapped  by  the  lack 
of  those  principles  which  alone  would  justify  them.  Nowhere  has 
criminal  procedure  such  deep  roots  in  the  moral  and  social  customs 
as  in  England  ;  nowhere  has  its  evolution  more  closely  corresponded 
to  the  development  of  the  nation  and  its  destinies.  In  no  other 
country  can  it  look  back  on  as  many  centuries  of  existence  and 
experience  ;  and  an  enlightened  lawgiver  cannot  overlook  such  an 
advantage.  Nowhere  is  criminal  procedure  better  protected  by 
sane  guarantees,  nor  contributes  as  efficiently  and  generally  in 
maintaining  public  order  ;  while,  by  its  method  of  guaranteeing 
absolute  personal  liberty,  it  is  in  great  favour  with  the  whole  nation. 

"  The  study  of  English,  Scotch,  and  American  law  presents,  how- 
ever, some  difficulties.  Both  theoretical  and  practical  textbooks 
leave  much  to  be  desired  in  the  way  of  stating  fundamental 
principles  and  details.  The  authors,  writing  practical  handbooks 
for  their  compatriots,  in  referring  to  the  national  law,  assume 
that  the  reader  is  thoroughly  acquainted  with  social  and  legal 
customs  of  which  a  foreigner  is  most  likely  totally  ignorant. 
In  order  to  get  a  thorough  insight  into  English  procedure,  one 
must  examine  specific  cases  in  their  details,  and  see  how  funda- 
mental principles  are  applied  in  their  decision.  It  is  imperative 
to  know  the  course  of  judicial  decision,  and  the  historical  develop- 
ment of  institutions  from  time  immemorial.  The  legal  views  of 
judges,  as  shown  in  the  final  instructions  to  the  jury  or  in  the 
introductory  part  of  the  judgments,  must  be  analyzed,  and  the 
reasons  ascertained  on  which  rest  the  legal  decision  in  each  case. 
It  is  necessary,  finally,  to  study  public  opinion  and  national  feeling, 
as  is  expressed  and  interpreted  by  judges  and  lawyers,  by  citizens 
on  jury  duty,  and  by  lawgivers. 

"  The  present  work  aims  at  meeting  the  demand  for  an  historical 
examination  of  each  institution  from  its  origin  until  the  present 
day.  It  attempts  to  show  how  these  institutions  are  connected 
with  social  and  political  customs  and  the  stage  of  civilization  of  the 
people.  The  fundamental  principles  of  the  English  system,  and 
their  application  in  numerous  criminal  cases,  will  be  discussed,  with 


MITTEBMAIER  553 

citations  from  particular  cases  and  instructions  by  judges.  To 
succeed  in  such  an  undertaking  is  only  possible  by  personal  investi- 
tigation,  by  consultations  with  jurists  and  other  citizens,  and  by 
perusal  of  statistics  and  parliamentary  reports.  By  such  a  method 
an  exact  picture  can  be  secured  of  the  judicial  system,  of  its  opera- 
tion, and  of  reform  measures  proposed  in  different  details.  More 
than  fifteen  hundred  criminal  cases  tried  during  the  last  three  years 
were  studied  by  the  author,  either  by  personally  taking  notes  during 
the  proceedings,  or  by  perusing  the  shorthand  reports  and  the 
journals,  as  well  as  the  reports  in  the  extremely  valuable  collection 
of  Arkley  (for  Scotland).  For  the  description  of  the  actual  condi- 
tions of  criminal  practice  in  the  United  States,  the  assistance  of 
several  leading  legal  scientists  was  secured. 

"  No  impartial  student  of  English  criminal  procedure  could  com- 
mend its  complete  imitation  by  other  nations.  This  would  do 
injustice  to  the  improvements  that  have  been  introduced  into 
French  criminal  procedure,  and  particularly  to  the  many  reforms 
made  in  German  States  since  1848,  which  were  received  with  such 
favour  by  the  public.  It  is  undoubtedly  true  that  whoever  has 
watched  trials  of  criminal  cases  in  England  is  very  strongly  im- 
pressed with  the  efficiency  of  that  system.  While  thoroughly 
recognizing  the  rights  of  the  accused,  and  allowing  him  every  liberty 
of  defence,  it  insures  the  innocent  person's  acquittal  and  the  guilty 
one's  condemnation.  And  a  system  of  criminal  procedure,  which 
shall  conform  to  ideas  of  justice,  and  while  inspiring  the  fullest  confi- 
dence in  each  citizen,  shall  guarantee  public  order  and  security,  must 
in  the  opinion  of  all  intelligent  men  be  of  the  greatest  importance. 
They  must  consider  how  far  it  is  feasible  to  establish  a  system  of 
criminal  procedure  which  will  satisfy  every  requirement  while 
avoiding  the  shortcomings  observable  in  France,  England,  Scotland, 
the  United  States,  and  Germany.  After  a  thorough  study  one  will 
concede  that  English  law  can  contribute  a  great  deal  to  a  theoreti- 
cally and  practically  perfect  system,  and  will  yet  be  able  to  maintain 
that  certain  methods,  whose  efficient  application  in  England,  Scot- 
land, and  the  United  States  is  made  possible  by  institutions 
peculiar  to  these  countries  and  certain  characteristics  of  their  social 
life,  would  be  impracticable  in  Germany. 

"  The  present  work  is  intended  to  prepare  the  reader  for  a  more 
elaborate  one,  in  which  the  shortcomings  and  defects  of  criminal 
procedure  of  different  countries  will  be  discussed  more  thoroughly, 
by  analyzing  the  fundamental  principles  and  their  logical  conse- 
quences. It  is  hoped  to  show  in  this  work  how  a  system  of  criminal 
procedure  may  be  established,  which  shall  safeguard  in  equal 
degree  the  interests  of  society  and  the  liberty  of  the  individual 
citizen,  inspiring  confidence  in  all  worthy  citizens  and  wholesome 
terror  in  all  enemies  of  public  order." 

Mittermaier  never  wrote  a  handbook  of  Criminal  Law,  though 
he  repeatedly  declared  that  it  was  to  be  his  life's  work.  Instead, 
he  brought  out  the  12th  (1836),  the  13th  (1840),  and  the  14th 


554  MTTTERMAIEB 

(1847)  edition  of  Feuerbach's  Handbook  ;  to  this  he  added  numer- 
ous footnotes,  in  which  he  expressed  his  own  ideas  and  embodied 
also  the  views  of  other  authors,  which  were  frequently  opposed 
to  Feuerbach's. 

Besides  all  this,  he  wrote  countless  reviews  and  reports,  covering 
the  whole  field  of  legal  science,  which  were  published  partly  in 
German  and  foreign  journals,  partly  in  the  periodicals  which  he 
edited  himself.  Two  of  the  latter,  the  oldest  and  most  influential 
publications  of  German  legal  science,  have  been  mentioned 
above — the  Archiv  fur  civilistische  Praxis  and  the  Archiv  far 
Kriminalrecht.  For  fifty  years,  from  its  foundation,  he  was 
chief  editor  of  the  first-named  journal.  Every  number  contains 
contributions  by  Mittermaier,  either  under  the  form  of  discussions 
of  specific  questions  or  of  reviews  of  codes,  draft-codes,  and  the 
literature  of  the  Law  of  Procedure.  It  is  like  a  running  com- 
mentary for  fifty  years  on  all  publications  on  this  subject.  Some 
of  his  most  frequent  topics  were :  the  legal  profession,  relations 
between  justice  and  administration,  statistics  of  civil  cases,  marital 
property  rights  ;  we  also  find  essays  on  the  law  of  guardianship, 
railroad  law,  and  other  subjects.  For  forty-two  years,  until  its 
publication  ceased,  he  was  chief  editor  of  the  Archiv  fur  Kriminal- 
recht. He  contributed  to  it  regularly  articles  on  criminal  law 
and  procedure,  and  reviewed  codes,  draft-codes,  and  literature. 

Mittermaier  would  discuss  the  theoretical  side  of  a  question 
only  so  far  as  it  served  an  immediately  attainable  end.  He 
always  avoided  sacrificing  practical  advantages  to  an  excessive 
aspiration  for  ideal  perfection.  Wise  circumspection  and  broad 
experience  always  guided  his  deeply  philosophical  mind  towards 
the  real  goal — the  final  application  of  principles  to  practice. 
With  this  object  constantly  in  view,  while  advising  German  legal 
scientists  to  take  up  the  study  of  foreign  legislation  and  works 
of  foreign  authors,  Mittermaier  insisted  on  their  keeping  up  the 
thorough  method  and  scientific  synthesis  peculiar  to  German 
science.  Though  he  was  heart  and  soul  in  this  great  work  of 
progress  on  universal  lines  (made  possible  by  his  industry  and 
his  linguistic  knowledge),  he  took  extreme  care  not  to  fall  into 
the  error  (too  common  in  our  own  days)  of  failing  to  appreciate 
enough  the  laws  and  institutions  of  one's  own  country,  while 
praising  to  the  skies  those  of  foreign  lands.  He  carefully  avoided 
advocating  dangerous  innovations — an  advocacy  often  due  to 
an  exaggerated  admiration  of  foreign  institutions  insufficiently 


MITTEEMAIEK  555 

known.  A  clear-cut,  judicial  instinct  protected  him  against 
consenting  to  sacrifice  time-honoured  institutions  of  his  own 
country  to  those  of  foreign  lands,  the  introduction  and  adoption 
of  which  would  frequently  be  impracticable. 

A  third  publication,  founded  by  Mittermaier  and  C.  S. 
Zachariae  (later  edited  in  co-operation  with  R.  v.  Mohl  and 
for  a  time  with  Warnkoenig),  attained  great  influence  ;  this  was 
the  Critical  Review  of  Legal  Science  in  Foreign  Countries.1  Here 
Mittermaier  published  also  many  articles  on  foreign  legal  in- 
stitutions, codes,  and  literature.  Most  of  the  more  prominent 
jurists  of  foreign  countries  became  its  contributors,  and  thus  the 
comparative  study  of  law  assumed  international  importance. 
After  the  Archiv  filr  Kriminalrecht  ceased  to  be  published  in  1857, 
Mittermaier  (beginning  with  vol.  x.,  1858)  joined  the  staff  of  the 
Oerichtssaal  (first  number  in  1849),  which  was  primarily  devoted 
to  Criminal  Law.  Many  of  his  criminalistic  essays  appeared  in 
this  journal,  as  well  as  in  Goltdammer's  Archiv  fur  preussisches 
Strafrecht,  and  in  Der  Allgemeinen  Deutschen  StrafrecMszeitung 
(v.  Holt/endorff),  to  which  he  was  a  contributor.2 

Mittermaier 's  active  part  in  public  life  began  in  1827,  when  he 
was  elected  a  member  of  the  legislative  body  of  Baden,  to  which 
he  belonged  until  its  dissolution.  The  city  of  Bruchsal  was 
represented  by  him  in  the  Lower  House  of  Baden  from  1831  to 
1840.  In  that  year  he  resigned,  crushed  with  grief  by  the  death 
of  his  eldest  son,  Dr.  Martin  Mittermaier  (whose  graduating 
treatise,  Ueber  die  Griinde  der  Verpflichtung  zur  Edition  von 
Urkunden,  (Heidelberg,  1835),  is  still  considered  a  valuable  con- 
tribution to  science).  He  accepted  a  seat  again  from  1845  to 
1849.  With  the  exception  of  the  first  two  years  of  his  parlia- 
mentary activity,  he  was  the  presiding  officer  of  the  Lower  House 
during  the  sessions  of  1833,  1835,  1837,  1839,  and  1845.  Many 
legal  and  administrative  reforms  of  far-reaching  importance  were 
secured  by  Mittermaier's  active  co-operation :  a  law  regulating 
municipal  self-government,  relief  for  the  peasantry,  codes  of  civil 
and  criminal  procedure  and  of  criminal  law,  laws  introducing  the 
jury  system,  and  many  others.  He  strongly  favoured  oral  pro- 
cedure, publicity,  a  public  prosecuting  attorney  in  civil  procedure, 

1  Kritische  Zeitechrift  fur  Rechtswissenschaft  des  Auslandes,  28  vols.,  Heidel- 
berg, 1828-1856. 

2  Many  of  the  above  contributions  were  translated  into   English  and 
French,  in  books  or  periodicals. 


556  MITTEBMAIEE 

and  later  the  jury  system.  In  criminal  procedure  he  advocated 
thorough  investigation  of  facts,  humane  penalties,  and  prison  re- 
form. The  question  of  the  jury  system  required  an  especially  tact- 
ful treatment.  At  a  time  when  it  was  of  the  utmost  importance 
to  convince  the  authorities  and  the  lawyers  of  the  advantages 
of  oral  and  public  procedure,  in  order  to  enlist  their  sympathy 
for  this  reform  measure,  Mittermaier  refrained  from  publicly 
discussing  the  question  of  the  jury.  But  as  soon  as  both  measures 
had  been  adopted  by  the  legislature,  he  took  up  the  question  of 
the  jury,  which  he  had  carefully  investigated  in  France  and  other 
countries,  and  advocated  its  introduction.  His  numerous  essays 
and  articles  on  prison  reform,  life  sentences,  deportation,  and 
capital  punishment,  had  a  decisive  influence  in  making  criminal 
law  more  humane.  One  who  compares  the  principles  advocated 
by  Feuerbach  and  Grolmann  at  the  beginning  of  the  nineteenth 
century  with  the  present  state  of  criminal  science  and  law  in 
Germany  will  realize  what  invaluable  services  Mittermaier 
rendered. 

Mittermaier 's  admirable  services  as  president  of  the  Lower 
House  of  Baden  led  to  his  election,  on  March  31,  1848,  at  Frank- 
furt, president  of  the  first  German  parliament.  After  the  failure 
of  this  German  struggle  for  a  constitution,  he  retired  from 
politics,  refusing  for  years  the  invitation  from  many  districts 
to  become  their  representative  in  the  Lower  House  of  Baden. 
In  the  civic  life  of  Heidelberg,  whose  honorary  freedom  was 
conferred  upon  him  in  1838,  he  was  vitally  interested.  He  was 
a  member  of  the  city  council,  the  school  board,  and  numerous 
benevolent  societies,  being  one  of  the  founders  and  directors  of 
the  relief  society  and  the  orphanage.  In  a  memorial  address, 
State  Councillor  Lamey  has  drawn  us  a  picture  of  Mittermaier 
in  the  following  appreciative  terms  :  "  Mittermaier  was  absolutely 
free  from  selfishness  and  prejudice.  He  undertook  as  his  life's 
task  to  promote  the  welfare  of  the  State  and  all  its  citizens.  The 
misery  of  the  poor,  the  appeal  of  the  oppressed,  and  the  affliction 
of  prisoners  touched  his  heart.  All  could  rely  upon  his  help, 
without  being  questioned  as  to  their  responsibility  for  the  mis- 
fortune. Schools,  orphan  asylums,  and  other  charitable  in- 
stitutions always  secured  his  active  co-operation.  He  tried  un- 
ceasingly to  lessen  all  forms  of  unnecessary  distress  and  suffering, 
caused  by  human  selfishness,  superstition,  and  unkindness." 
By  his  teaching  and  writing,  and  by  his  varied  social  activity 


MTTTEBMAIEB  557 

he  did  more  than  his  share  for  the  improvement  of  laws  and  for 
the  raising  of  the  standard  of  civilization. 

His  desire  for  knowledge  induced  him  to  spend  his  vacations 
travelling  about  in  search  of  additional  information  on  foreign 
countries,  their  inhabitants  and  institutions,  instead  of  seeking  a 
rest  from  his  fatiguing  professional  activity.  Besides  collecting 
literature  during  these  trips,  he  met  the  best-known  German  and 
foreign  legal  scientists,  lawyers,  and  statesmen.  His  first  Italian 
trip,  for  instance,  yielded  a  rich  harvest  of  rare  books  of  medieval 
legal  literature,  which  he  carried  home  in  his  knapsack.  Italy, 
suffering  in  her  political  and  spiritual  development  from  foreign 
oppression,  attracted  his  special  interest.  Eight  times  he 
crossed  the  Alps,  and  in  his  Conditions  in  Italy  he  expressed 
his  deep  sympathy  with  that  country.  France  and  Belgium 
were  frequently  visited  ;  he  there  came  in  contact  not  only  with 
native,  but  also  with  Spanish  and  Portuguese  statesmen  and  legal 
scientists.  In  1850,  when  already  sixty-three  years  old,  he  went 
to  England  and  Scotland,  thoroughly  prepared  by  careful  studies 
of  their  institutions  and  language.  By  personal  contact  with 
statesmen,  lawyers,  and  prison  officials,  he  was  able  to  fill 
in  the  gaps  in  his  knowledge  of  English  legal  and  penal  institu- 
tions. A  much  cherished  project  to  visit  the  United  States  was 
never  realized,  but  he  gathered  an  unusually  vast  fund  of  infor- 
mation on  legal  conditions  in  that  country  by  personal  corre- 
spondence with  statesmen  and  legal  scientists  in  many  States  of 
the  Union.  In  later  years  his  vacations  were  specially  devoted 
to  visits  to  prisons  and  insane  asylums.  He  attended  the  two 
international  congresses  of  charities  and  correction  in  Brussels 
and  Frankfurt ;  at  the  latter  he  was  made  temporary  presiding 
officer.  In  1846  and  1847  he  went  to  the  Congresses  in  Liibeck 
and  Frankfurt.  In  Liibeck  he  was  asked  to  prepare  a  report 
on  the  jury  system  for  the  next  meeting  in  Frankfurt ;  and  this 
report  was  there  adopted.  This  led  to  the  general  introduction 
of  the  jury  system  after  1848. 

His  professional  success  and  the  honours  bestowed  on  him  in 
steadily  increasing  numbers  as  his  age  advanced  never  affected 
in  the  least  his  simple  and  modest  character.  Neither  university 
titles,  nor  the  tributes  of  thousands  of  scholars  from  every  corner 
of  the  globe,  nor  the  many  German  and  foreign  orders  of  merit 
nor  his  membership  in  the  most  important  academies  and 
scientific  societies  of  the  world,  produced  the  slightest  change 


558  MITTERMAIER 

in  his  character  or  manners.  A  helping  hand  was  always  ex- 
tended to  the  most  humble,  as  well  as  to  the  most  prominent. 
He  enjoyed  the  dedication  of  a  work  by  an  unknown  author 
quite  as  much  as  one  by  a  writer  of  repute.  He  lent  freely  the 
books  which  stocked  his  extensive  library.  He  would  answer  any 
question  from  any  part  of  the  world.  Mittermaier  had  become 
so  famous  an  authority,  not  only  on  civil  procedure,  but  also  on 
general  foreign  law  and  its  literature,  that  courts  of  law  and  legal 
scientists  often  saved  themselves  the  trouble  of  investigating 
on  their  own  account  by  simply  referring  the  question  to  him. 

His  fiftieth  jubilee  as  a  doctor,  in  1859,  brought  visits  from 
deputations  of  the  Universities  of  Heidelberg,  Freiburg,  and  Basel, 
of  primary  and  secondary  schools,  of  representatives  of  the 
government,  the  municipality,  and  the  clergy,  and  of  many 
societies.  The  president  of  the  Supreme  Court  offered  congratu- 
lations in  the  name  of  the  courts  of  law  of  Baden,  eulogizing 
especially  his  merits  as  a  legislator  and  legal  scientist.  The  legal 
and  philosophical  faculties  of  nearly  all  German  Universities 
commemorated  the  event  by  sending  letters  of  congratulation. 
His  doctor's  diploma  was  renewed  (according  to  custom)  by  the 
faculty  of  law,  and  the  philosophical  faculty  of  the  University 
of  Heidelberg  conferred  upon  him  the  honorary  title  of  doctor 
of  philosophy.  Numerous  scientific  works  were  dedicated  to 
him  on  this  occasion. 

After  1859  Mittermaier  began  to  restrict  his  academic,  though 
not  his  literary,  activity.  We  have  mentioned  before  that  he 
became  greatly  interested,  during  the  later  years  of  his  life,  in 
prison  reform,  the  jury  system,  and  the  abolition  of  capital 
punishment.  Most  of  the  works  written  after  1858  related  to 
these  topics.  His  book  on  Capital  Punishment,1  published  in 
1862,  the  embodiment  of  fifty  years  of  work  and  experience, 
astonished  German  and  foreign  legal  scientists  with  its  exhibition 
of  indefatigable  energy  on  the  part  of  a  man  of  seventy-six, 
and  forced  many  to  reconsider  their  ideas  on  this  grave 
problem. 

When  repeated  attacks  of  sickness  began  to  undermine  his 
seemingly  robust  health,  he  spoke  often  to  his  intimate  friends 
of  his  intention  of  giving  up  his  academic  work.  He  sus- 
pended his  lecture  course  in  May,  1867,  under  an  attack  of 
pleurisy. 

On  his  eightieth  birthday  he  gave  to  the  University  of  Heidel- 


MTTTKRMAIER  559 

berg  his  library  of  15,000  volumes,  a  royal  gift,  which  will 
immortalize  his  name  in  the  University. 

He  died  of  heart  disease  on  August  28,  1867,  a  painless  and 
beautiful  death. 

Characteristics. — The  most  appropriate  epithet  for  Mitter- 
maier  is  humanitarian  ;  for  this  describes  most  adequately  both 
the  strength  and  the  weakness  of  his  talents.  His  chief  aim 
throughout  his  life  was  to  turn  to  practical  use  the  abundant 
material  which  had  been  contributed  to  legal  science.  He  was 
enabled  by  his  astonishing  receptivity  and  his  learning  to  use 
these  resources  to  the  utmost.  Legal  science  in  his  opinion 
embodied  the  principles  which  rule  human  society.  As  they 
continually  change,  he  favoured  a  constant  re-examination  of 
the  law  and  of  social  phenomena  and  social  needs.  He  put 
on  record  even  the  minutest  details  of  progress.  The  Historical 
School  of  Law  had  had  proclaimed  as  its  chief  purpose  the 
critical  study  of  the  existing  laws  and  their  historical  evolution. 
But  Mittermaier,  aiming  far  beyond  this,  set  as  the  task  of 
his  life  the  rational  examination  and  improvement  of  existing 
laws.  He  advocated  at  the  outset  of  his  career  improve- 
ments in  procedure,  especially  in  the  antiquated  criminal 
procedure,  though  the  necessity  of  the  introduction  of  the  jury 
system  dawned  only  slowly  upon  him.  In  his  teaching  and 
writing  he  tried  to  familiarize  the  people  thoroughly  with  a 
subject,  showing  its  evolution  and  the  practical  working  out  of 
fundamental  principles.  He  was  never  content  to  advance  only 
one  argument  for  the  support  of  a  theory,  but  generally  discussed 
it  from  many  points  of  view.  He  relied,  for  instance,  upon 
psychiatry  and  legal  medicine  to  support  his  views  on  the  needed 
changes  of  criminal  law  and  procedure.  Taking  the  point  of  view 
of  comparative  legal  history,  he  showed  how  the  almost  hitherto 
unknown  Italian  law  had  influenced  the  evolution  of  Roman- 
German  civil  and  criminal  law  and  procedure  ;  he  likewise  drew 
attention  to  the  part  played  by  Germanic  and  later  sources  of 
law.  He  was  the  first  author  to  become  thoroughly  acquainted 
with  the  foreign  literature  on  German  legal  science  and  on  the 
evolution  of  German  law.  Until  Mittermaier's  indefatigable 
industry  increased  the  scope  of  German  knowledge  in  such 
astonishing  degree,  only  the  few  most  important  foreign  codes 
were  considered  by  German  jurists. 

He  was  one  of  the  founders  and  most  influential  representatives 


560  MITTERMATER 

of  the  science  of  comparative  law,  which  aims  to  collect  all 
available  material  on  the  law  of  every  people  in  all  periods,  and 
thus  to  prepare  a  basis  for  more  uniform  legislation  in  all  civilized 
countries.  Though  much  here  remains  still  to  be  accomplished, 
Mittermaier  has  pointed  out,  in  his  more  important  works,  the 
general  legal  principles  and  their  relation  and  efficiency  in  the 
whole  domain  of  social  institutions  of  many  countries.  His 
method  was  to  ascertain  how  far  they  differed  or  were  identical 
in  theory  and  in  practice,  and  howexpedient  would  be  the  adoption 
of  foreign  principles  in  German  law.  Thus  Mittermaier  must  be 
deemed  the  most  important  mediator  between  German  and  foreign 
legal  science.  Of  all  German  legal  scientists,  even  Savigny  not 
excepted,  his  name  is  internationally  best  known  and  most 
esteemed. 

Though  his  activity  covered  so  much  ground  that  even  a  detailed 
survey  is  difficult  enough,  he  used  to  tell  his  friends  that  only  by 
force  of  circumstances  had  he  taken  up  so  many  different  sub- 
jects ;  and  he  strongly  advised  younger  men  to  concentrate  their 
efforts  and  to  specialize ;  for  this  alone  guarantees  progress  in 
science.  Mittermaier,  as  a  jurist,  was  of  prodigious  fertility  ;  he 
never  allowed  his  political  and  public  activities  to  interfere  with 
his  indefatigable  industry  along  scientific  lines.  He  was  one  of 
the  most  influential  popularizers  of  legal  science,  of  which  he 
thoroughly  knew  every  branch. 

In  the  history  of  penal  law  his  name  is  immortal ;  and  he  has 
here  earned  the  title  of  the  foremost  legal  scientist  of  his  century. 
Posterity  will  for  ever  hold  in  memory  how  much  progress  was 
achieved  through  Mittermaier's  efforts,  and  how  many  projects 
of  reform  still  awaiting  fruition  were  proposed  and  made  possible 
by  his  enlightened  toil. 


FRIEDRICH    CARL   VON   SAVIGNY 


FRIEDRICH  CARL  VON  SAVIGNY 

THE  ancient  family  to  which  Friedrich  Carl  von  Savigny  belonged 
was  of  Lorraine  origin,  deriving  its  name  from  the  Castle  of 
Savigny,  near  Charmes,  in  the  valley  of  the  Moselle,  and  Paul  de 
Savigny,  an  ancestor  of  the  jurist,  was  born  at  Metz  in  1622.  The 
family  were  Calvinists,  and  retained  their  German  allegiance 
on  the  transfer  of  Lorraine  to  France.  Paul  entered  the  Swedish 
army,  and  settled  in  a  military  capacity  in  Germany,  dying  at 
Kirchheim  in  1685.  His  son  Louis- Jean  became  a  lawyer,  and 
served  the  Prince  of  Nassau.  In  1692  he  published  a  work 
attacking  the  ambitious  wars  of  Louis  XIV.  He  died  in  1701. 
His  son  Louis,  who  was  born  in  1684  and  died  in  1740,  also  held 
a  political  office.  Chretien-Charles-Louis,  the  son  of  Louis,  was 
born  in  1726  at  Trabens  on  the  Moselle,  and  attained  to  a  con- 
siderable position  in  diplomatic  and  political  circles.  He  was  a 
member  of  the  assembly  which  met  at  Frankfort  to  represent 
one  of  the  ten  Circles  of  the  Empire,  the  Circle  of  the  Upper  Rhine. 
On  this  body  he  was  a  representative  of  various  princes.  Friedrich 
Carl  von  Savigny  (to  adopt  the  German  form  of  the  name)  was 
born  at  Frankfort  on  February  21,  1779.  The  father  of  the  jurist 
was  a  Lutheran,  the  mother  a  Calvinist.  In  those  days  the 
Calvinists  were  not  allowed  to  worship  in  Frankfort,  though  the 
ministers  were  very  gifted  men.  The  town  was  dominated  by 
the  Lutherans,  who  made  up  for  the  inefficiency  of  their  clergy 
by  the  sufficiency  of  their  police.  The  Calvinists  were  obliged 
to  worship  out  of  the  town  at  the  village  of  Bockenheim,  and 
thither,  Sunday  by  Sunday,  the  little  fellow  was  taken  by  his 
mother,  despite  the  father's  adherence  to  the  popular  faith. 

His  mother  watched  over  the  child's  early  education  with 
exemplary  care.  M.  Charles  Guenoux  tells  us  that  "  she  taught 
him  French  with  the  tragedies  of  Racine  and  Les  VeilUes  du 
Chateau  of  Madame  de  Genlis.  He  had  hardly  reached  the  age 
of  three  years  when  she  was  already  reading  the  Bible  to  him, 

561  37 


562  FRIEDRICH  CARL  VON  SAVIGNY 

and  perhaps  we  ought  to  attribute  to  her  lessons  and  to  her 
example  that  truly  religious  spirit  which  formed  one  of  the  salient 
traits  in  the  character  of  her  son."  Her  life  had  many  sorrows 
to  foster  her  natural  piety.  All  her  children  except  Frederic  died 
young,  and  in  1791  her  husband  died.  In  1792  she  herself  passed 
away,  and  at  the  age  of  thirteen  Friedrich  Carl  von  Savigny  was 
left  an  orphan  without  sisters  or  brothers.  His  father's  best 
friend,  a  famous  lawyer,  M.  de  Neurath,  the  Assessor  of  the 
Imperial  Chamber  at  Wetzlar,  became  another  father  to  the  boy, 
and  personally  superintended  the  education  of  his  son  and 
Friedrich  von  Savigny.  When  they  reached  the  age  of  fifteen 
he  plunged  them  into  a  terrible  course,  comprising  the  science 
of  law,  natural  law,  international  law,  Roman  law,  German  law, 
and  so  forth.  The  principles  were  driven  into  the  boys'  minds 
by  the  system  of  question  and  answer,  and  finally  they  were 
induced  to  commit  to  memory  a  vast  volume  of  speculative 
thought.  It  was  an  extraordinary  training,  recalling  to  some 
extent  the  aridity  of  Mill's  early  life,  but  it  was  modified  by  the 
abiding  influence  of  his  mother  and  the  personal  tenderness  of 
M.  de  Neurath.  We  are  told  that  Savigny  revolted  against  the 
unreality  of  this  shadow-land  of  thought.  Indeed  his  whole 
after-life  of  work  was  in  a  sense  a  protest  against  the  unhistoric 
school  of  thought  which  robed  in  unreality  his  earliest  period 
of  intellectual  effort.  Neurath's  lessons  must,  however,  have 
been  extraordinarily  effective,  for  they  turned  the  entire  interests 
of  the  youth  into  the  direction  of  the  theory  and  history  of  law. 
At  the  age  of  seventeen  (Easter,  1795)  he  joined  Marburg  Uni- 
versity, and  attended  successive  courses  by  Erxleben  and  Weiss 
on  the  Pandects. 

Weiss  was  a  dramatic  and  effective  teacher,  and  he  placed  his 
fine  library  at  the  disposal  of  Savigny,  who  became  one  of  his 
private  pupils.  Indeed,  though  not  a  lawyer  of  great  fame,  he 
really  turned  the  mind  of  Savigny  in  the  direction  of  the  change 
of  method  that  was  then  in  the  air.  Weiss  was  a  bitter  opponent 
of  Wolff  and  other  standard  authors,  and  though  he  did  not  accept 
the  entire  views  of  Hugo  and  Naubold,  he  felt  that  a  sense  of 
history  or  evolution  was  a  necessary  element  in  the  study  of  law. 
Savigny,  who  had  suffered  as  a  boy  many  things  from  what  we 
may  call  the  a  priori  school  of  law,  drank  in  the  new  doctrine 
with  avidity,  and,  passing  in  October,  1 796,  to  the  University  of 
Gottingen,  his  historical  leanings  were  confirmed  by  the  brilliant 


FRIEDRICH  CAUL   VON   SAVIGNY  563 

lecturing  of  Spittler  on  universal  history.  Gottingen  had  nothing 
else  worth  having  to  give  this  student,  but  it  did,  in  fact,  give  him 
the  one  thing  needful  at  the  moment.  An  illness  in  the  spring 
of  1797  interrupted  work,  and  in  October  Savigny  returned  to 
Marburg  for  further  study.  From  1799  to  1800  he  travelled 
through  Germany,  visiting  various  universities,  including  Leipzig 
and  Jena,  and  devoting  his  entire  time  to  study.  In  the  year 
1800  he  received  the  degree  of  doctor  at  Marburg,  his  dissertation 
on  the  occasion  being  entitled  De,  concursu  Delictorum  formali 
(Vermischte  Schriften,  iv.  74).  The  same  year  he  became  an 
authorized  teacher  (Privatdocent)  at  Marburg,  and  lectured  on 
criminal  law.  He  also  lectured  (as  an  additional  or  extraordinary 
professor)  on  the  ten  last  books  of  the  Pandects  Ulpian,  the  Law 
of  Succession,  Obligations,  the  Methodology  of  Law,  and  the 
History  of  Roman  Law.  In  these  courses  we  indeed  see  laid 
out  the  ground-plan  of  his  life's  work.  M.  Guenoux  (from  whose 
work  this  life  of  Savigny  is  largely  derived1)  tells  us  of  the  growth 
of  his  attitude  towards  history.  He  says  : 

"L'Histoire  du  droit  romain  de  Hugo  avait  excite  vivement 
1'interet  de  Savigny,  et  par  ses  formes  souvent  enigmatiques, 
plutot  eveille  que  satisfait  sa  curiosite.  Les  ameliorations  de 
onze  editions  successives  ont  plus  que  decuple  Fouvrage  original 
sans  faire  disparaitre  entierement  ce  caractere.  Au  reste, 
Savigny  a  toujours  professe  une  respectueuse  reconnaissance 
pour  les  travaux  de  Hugo,  et  quoiqu'il  n'ait  jamais  suivi  ses 
cours,  c'est  peut-etre  le  seul  jurisconsulte  moderne  qui  ait  eu  de 
Pinfluence  sur  son  developpement." 

No  doubt  this  is  largely  true,  but  in  fact  Savigny  came  upon 
the  scene  at  a  moment  when  there  was  a  struggle  in  progress 
between  the  supporters  of  the  school  of  traditional  learning  and 
thinkers  of  the  Hegelian  type  who  desired  to  demonstrate  and 
share  in  the  processes  of  evolution  or  history.  It  must  be  remem- 
bered that  Savigny  represents  a  stage  in  a  movement  that  is 
really  a  Renaissance  movement,  and  that  the  eighteenth-century 
theories  of  law  as  put  forward  by  Wolff  and  Vattel  and  many 
of  their  followers  was  rather  an  intellectual  interlude  than  a 


Droit  Romain  au  Moyen-Age,  par  M.  de  Savigny,  traduito 
ir  la  derniere  edition  et  precedee  d'une  notice  sur  la  vie  et 


1  Histoire  du 
de  1'Allemand  sur 

les  ecrits  de  1'auteur  par  M.  Charles  Guenoux  (four  volumes,  one  and  two  in 
one,  Paris,  1839).  But  see  also  for  the  life  and  works  of  the  jurist,  Friedrich 
Carl  von  Savigny  :  sein  Wesen  und  Wirken,  by  Professor  Rudorff  (Weimar. 
1862),  and  a  paper  by  Mr.  William  Guthrio  in  the  Law  Magazine  and  Review 
for  May,  1863;  Ihoring,  Gesammelte  Aufscitge ;  Mignet,  Nouveaux  Eloges 
Historiques,  1877. 


564  FBIEDEICH  CARL   VON  SAVIGNY 

definite  disturbance  of  the  Renaissance  movement.  The  pre- 
Benaissance  jurisconsults  from  the  twelfth  to  the  fifteenth  cen- 
tury, the  Glossators1  as  they  are  called,  had  been  engaged  in  the 
practical  work  of  deriving  from  Roman  law  a  working  code  that 
should  destroy  and  replace  the  rapidly  forming  feudal  law.  With 
the  Renaissance  came  Italian  and  French  thinkers  destined  to 
do  more  than  this—Andrea  Alciati  (1492-1550)  and  Jacobus 
Cujacius  (Jacques  Cujas)  of  Toulouse  (1522-1590).  Joseph 
Scaliger  said  of  these  two  men,  "Ce  qu'Alciat  a  commence, 
Cujas  1'a  accompli."  Alciati  gave  new  life,  new  literary  form, 
to  the  study  of  jurisprudence  ;  but  Cujas  did  more  than  this,  he 
penetrated  into  the  very  spirit  of  Roman  law.  M.  Lerminier,  in 
Ms  Introduction  generate  a  VHistoire  du  Droit  (1829,  cap.  v., 
pp.  43-46),  says  of  Cujas  : 

"Ne  craignons  pas  de  le  dire,  il  a  aime  le  droit  remain  en 
poete,  il  a  nourri  le  sentiment  le  plus  profond  de  sa  realite, 
et,  pa  1'energie  qu'il  a  deployee  dans  cette  voie,  il  s'est  fait  le 
veritable  fondateur  de  1'ecole  historique  du  droit :  c'est  de  lui 
que  procede  1'ecole  historique  allemande  en  ce  qui  touche  le  droit 
romain.  .  .  .  Son  genie  :  c'est  un  esprit  d'historien,  c'est  une 
imagination  d'artiste  ;  sous  sa  plume,  tout  est  historique,  in- 
dividuel ;  aussi  dans  la  volumineuse  collection  de  ses  ceuvres 
vous  ne  trouverez  pas  un  ouvrage  qui  ne  soit  un  commentaire, 
une  explication,  une  note  sur  les  vestiges  de  1'antiquite.  Cujas 
est  le  modele  de  1'exegese." 

The  learned  writer  (M.  Rapetti)  of  the  article  on  Cujas  in  the 
Nouvelle  Biographie  Generate,  after  quoting  the  opinion  of  M. 
Lerminier,  adds  this  important  reflection  : 

"  L'ceuvre  de  Cujas  ne  fut  pas  seulement  une  explication  plus 
habile  de  la  loi  romaine,  un  modele  d'exegese,  une  revelation  du 
vrai  genie  de  la  legislation  latine  :  en  etudiant  la  loi  romaine 
comme  un  objet  de  restauration  historique,  Cujas  a  obtenu  un 
autre  avantage  ;  le  premier,  il  a  suscite  cette  idee,  a  savoir  qu'il 
est  pour  chaque  civilisation  une  loi  propre,  et  par  la  il  a  contribue 
a  releguer  la  loi  romaine  dans  son  antiquite  venerable  ;  il  a  eman- 
cip6  de  Fempire  trop  absolu  de  cette  loi  1'autonomie  des  nou- 
velles  societes." 

Cujas  hi  the  immense  output  of  his  work  foreshadows  the 
industry  of  Savigny.  The  six  great  folios  of  his  collected 

1  The  jurisconsults  of  the  school  of  Bologna,  Accurse,  Bartole,  Vinorius, 
etc.  (see  Nouvelle  Biographie  Generate,  tome  xii..  art.  de  Cujas,  col.  592). 


FRIEDBICH  CARL  VON  SAVIGNY  565 

works1  overwhelm  the  mind.  The  first  folio  deals  fully  with  four 
books  of  the  Institutes  of  Justinian,  twenty-nine  titles  from  Ulpian, 
and  with  Julius  Paulus.  The  second  folio  contains  the  brilliantly 
restored  works  of  Papinian.  The  third  gives  us  Paratitla  in  nine 
books  of  the  Codicis  Justiniani  and  a  commentary  on  the  three 
last  books  (x.,  xi.,  xii.)  of  the  Codex,  an  exposition  of  the  Novels 
and  of  the  five  books  relating  to  Feuds,  together  with  twenty- 
eight  books  of  observations  and  emendations.  The  fourth  folio 
gives  us  Paulus  on  the  Edict  and  his  books  of  Questions,  and  also 
the  Responsa  of  Paulus,  Neratius,  Marcellus,  Ulpian,  Modestinus, 
and  Scaevola ;  Notes  on  Modestinus  and  the  works  of  Salvius 
Julianus.  Polios  v.  and  vi.  contain  the  post-mortem  publications 
(edited  by  T.  Guerinus  and  C.  Colombet),  comprising  Com- 
mentaries on  no  less  than  seventy-six  titles  of  the  Digest  and 
innumerable  notes  on  the  Codex  of  Justinian  and  on  Books  ii., 
iii.,  and  iv.  of  the  Decretals  of  Gregory  IX.  Cujas  was  rightly 
called  Jurisconsultus,  for  he  placed  Roman  law  on  a  new  footing 
and  brought  it  into  line  with  the  laws  that  it  was  destined  to 
affect.  This  sturdy  and  genial  scholar2  and  his  bitter  but  brilliant 
opponent  Hugues  Doneau  (Donellus)  (1527-1591)  were  (hi  the 
matter  of  the  study  of  law)  the  forerunners  of  Leibnitz  (1646-1716), 
whose  juridical  works  mark  a  definite  stage  in  the  study  of  the 
law,  works  such  as  Nova  methodus  discendcB  docendceque2  juris- 
prudentice  (Frankfort,  1667)  and  Codex  juris  gentium  diplomatics 
(1693)  with  its  supplement  Mantissa  Codicis  Juris  diplomatici 
(1700) ;  of  the  universal-minded  Jean-Etienne  Putter  (1725-1807), 
who  at  Marburg,  Halle,  and  Jena  became  deeply  proficient  in 
classics,  mathematics,  philosophy,  Roman,  feudal,  and  public 
law,  who  lectured  on  law  (1746)  at  Gottingen,  who  produced 
between  1776  and  1783  his  Bibliographica  du  droit  public  alle- 
mand,  who  wrote  his  Manuel  de  Vhistoire  d'Allemagne  in  1772  and 
his  Developpement  historique  de  la  constitution  de  I'empire  d'alle- 
magne  hi  1786.  In  Putter  we  see  the  exact  spirit  of  the  historical 
school.  A  descendant  of  these  men  was  Gustave  Hugo  (1764- 
1844),  who  deliberately  based  his  methods  on  Leibnitz  and 

1  Jacobi  Cuiacii,  1C.  Operum  quce  de  jure  fecit,  Paris,  Apud  Hervetum  de 
Mesnil,  1637.     Four  volumes  in  six,  prefaced  by  a  life  of,  and  many  epitaphs 
on  Cujas. 

2  "Vir  quadrato  corpora,  finnoque  ac  bone  constitute,  adeo  ut  ex  eo 
manans  sudor  non  insuavis  esset  odoris  (quod  ille  naturae  benencium  cum 
Alexandra  Macedone  commune  se  habere  ludens  nonnumquam  inter  amicos 
jactayit),  statura  brevi,  barba  turn  longa  et  cana,  sed  in  juventate  nigerrima, 
capillitio  simili,  colore  candido,  voce  firma  et  clara  "  (Vita). 


566  FRIEDRICH  CARL  VON  SAVIGNY 

Piitter.  He  devoted  much  time  to  the  historical  documents  and 
legislation  connected  with  Roman  law,  and  in  1788  published 
Les  Fragments  d'Ulpien,  and  was  at  once  called  to  a  professor- 
ship at  Gottingen.  Hugo  classified  law  into  persons  (their  state, 
their  relations  to  the  family  and  the  city,  their  nature,  character, 
and  the  method  of  acquiring  and  losing  property)  and  the  actions 
necessary  for  establishing  or  defending  rights.  This  classifica- 
tion was  adopted  in  the  Civil  Code.  This  was  a  philosophical 
classification.  But  Hugo  did  not  neglect  history.  He  divided 
Roman  law  into  three  periods  :  the  period  up  to  the  xii.  Tables, 
the  Praetorian,  and  the  Imperial  periods.  In  1790  he  issued  a 
History  of  Roman  Law,  in  1812  a  Manual  of  Roman  Law  since 
the  Time  of  Justinian,  and  between  1818  and  1829  he  published 
his  Elements  of  the  History  of  Roman  Law  up  to  the  Time  of 
Justinian.1  Through  Hugo  the  whole  historic  school  from  the 
days  of  the  Renaissance  concentrated  on  Savigny. 

At  Marburg  Savigny  instantly  made  his  mark  as  a  teacher. 
We  have  the  testimony  of  Jacob  and  Wilhelm  Grimm  (who  both 
were  pupils  of  his  hi  1802  and  1803)  as  to  his  capacity.  Wilhelm 
Grimm  wrote  hi  his  autobiography  (pp.  170-1)  as  follows  : 

"II  me  semble  que  ce  qui  attirait  et  captivait  si  puissamment 
ses  auditeurs,  c'etait  la  facilite  et  la  vivacite  de  sa  parole  jointes 
a  tant  de  calme  et  de  mesure.  Les  talents  oratoires  peuvent 
eblouir  quelque  temps,  mais  ils  n'attachent  pas.  Savigny 
parlait  d'abondance  et  ne  consultait  que  rarement  ses  notes. 
Sa  parole  toujours  claire,  sa  conviction  profonde  et  en  meme 
temps  une  sorte  de  retenue  et  de  moderation  dans  son  langage 
faisaient  une  impression  que  n'aurait  pas  produite  1'eloquence 
la  plus  abondante,  et  tout  en  lui  concourait  a  I'effet  de  sa 
parole.  .  .  . 

"II  nous  fit  comprendre  la  valeur  des  etudes  historiques  et 
1'importance  de  la  methode.  Ce  sont  la  des  obligations  que  je 
ne  saurais  trop  reconnaitre,  car  sans  lui  je  n'aurais  peut-etre 
jamais  donne  a  mes  etudes  une  bonne  direction.  Pour  combien 
de  choses  n'a-t-il  pas  eveille  notre  interet !  Combien  de  livres 
njavons-nous  pas  empruntes  a  sa  bibliotheque !  Avec  quel 
charme  ne  nous  a-t-il  pas  lu  quelque-fois  des  passages  de  Wilhelm 
Meister,  des  poesies  de  Goethe !  L'impression  que  j'en  ai  con- 
servee  m'est  encore  si  presente  qu'il  me  semble  1'avoir  entendu 
hier." 

It  is  a  charming  picture,  bringing  out  not  only  the  learning 

1  The  influence  of  Haubold  (1766—1824)  on  Savigny  must  also  be  kept 
in  mind. 


FBIEDRICH  GAEL  VON  SAVIGNY  567 

and  the  clarity  of  the  man,  but  his  humanity  and  charity.  One 
impression  conveyed  by  the  lectures  is  the  impression  that  all 
great  lecturers  indelibly  impress  on  the  minds  of  their  pupils. 
Who  that  heard  Maitland  lecture  can  think  of  it  as  having  been 
farther  away  than  yesterday  ?  But  Savigny  was  only  twenty- 
three  when  he  so  impressed  the  great  Grimm  brethren  ! 

Thirty  years  later  he  made  a  similar  impression  on  M.  Charles 
Guenoux.  He  wrote  in  1839  : 

"  Ce  qui  m'a  surtout  frappe,  c'est  la  vivacite  et  la  chaleur  d'un 
cours  qu'il  repetait  alors  pour  la  vingt-cinquieme  fois.  Son 
enseignement  offre  chaque  annee  un  interet  nouveau,  parce 
que  chaque  annee  on  y  retrouve  le  fruit  de  nouvelles  etudes, 
les  decouvertes  les  plus  recentes  et  le  dernier  etat  de  la  science. 
Aussi  Savigny  n'est-il  pas  insensible  a  1'interet  qu'il  excite  dans 
son  nombreux  auditoire,  et  c'est  ce  qui  lui  fait  continuer  ses 
Ie9ons  quand  des  travaux  plus  importants  peut-etre  sembleraient 
demander  tout  son  temps.  Sa  parole  abondante  et  precise 
eclaire  si  bien  les  matieres  les  plus  obscures  que  ses  eleves  n'en 
soup9onnent  la  difficulte,  que  si  plus  tard  ils  ont  besoin  de  cher- 
cher  une  solution  qui  leur  est  echappee.  Sa  methode  est  surtout 
remarquable  lorsqu'a  propos  de  matieres  controversies,  il  a 
occasion  d'exposer  des  doctrines  nouvelles.  Sa  parole,  alors  plus 
simple  et  plus  grave,  exprime  une  conviction  profonde  jointe  a 
une  modestie  sincere  ;  bien  different  de  ces  professeurs  qui,  pour 
persuader  leur  auditoire,  recourent  a  tous  les  artifices  de  1'avocat 
comme  s'il  s'agissait  d'un  plaidoyer,  et  font  d'une  question  scien- 
tifique  une  question  d'amour-propre  et  de  personnes." 

Savigny's  success  as  a  teacher  did  not  check,  nay,  rather 
encouraged,  his  efforts  as  a  student.  His  business  as  yet  was 
not  to  write  books,  but  to  study  texts,  and  so  to  make  possible 
a  real  revival  in  the  scientific  study  of  law.  His  master  Hugo 
had  already  done  much  in  this  direction.  M.  Guenoux  points 
out,  as  I  have  ventured  to  point  out  above,  the  value  of  Hugo's 
work.  He  found  a  lifeless  and  arbitrary  school  of  Roman  lawyers 
at  work,  men  who  never  recognized  the  heredity,  so  to  speak,  of 
Roman  law,  men  who  had  forgotten  the  lessons  of  the  Renaissance. 

"Mais  en  1788,  Hugo  appela  Pattention  sur  Ulpien  et  commenca 
une  reforme  semblable  a  celle  que  Cujas  avait  accomplie  au 
seizieme  siecle.  Anime  du  meme  esprit  que  ce  grand  homme,  il 
replaga  la  science  du  droit  sur  ses  veritables  bases  en  lui  restituant 
le  secours  de  la  philosophic  et  de  1'histoire.  ^  Haubold  et  Cramer 
partagent  avec  Hugo  la  gloire  de  cette  regeneration  de  la  science." 


568  FEIEDRICH  CARL  VON  SAVIGNY 

M.  Guenoux  goes  on  to  protest  against  the  belief  in  his  time 
(1839)  that  German  jurists  fell  into  two  schools,  the  historical 
school  and  the  philosophical  school.  The  distinction  was  merely 
one  of  pace ;  all  followed  the  Cujacian  School  and  refused  to 
isolate  jurisprudence  from  either  philosophy  or  history.  That 
may  have  been  the  case  in  1839,  but  it  certainly  was  not  the  case 
in  the  mid-eighteenth  century,  when  eminent  jurists,  men  such 
as  Wolff  and  Vattel,  did  in  fact  base  new  jurisprudence  on  a  priori 
theories.  The  great  triumph  of  the  school  of  which  Savigny  is 
the  shining  and  immortal  light  was  the  absolute  destruction  of  the 
a  priori  method  and  the  establishment  on  an  impregnable  basis  of 
the  vital  and  vitalising  principles  of  the  Renaissance. 

In  1803  appeared  Savigny's  famous  work  on  the  Bight  of 
Possession,  Das  Recht  des  Besitzes.  It  is  not  possible  (from  con- 
siderations of  space)  here  to  supply  an  analysis  of  this  treatise, 
but  something  must  be  said  as  to  the  scope  and  value  of  a  work 
which  Austin  in  his  Province  of  Jurisprudence  Determined  (ed. 
1832,  App.,  p.  xxxviii)  declared  to  be  "  of  all  books  upon  law, 
the  most  consummate  and  masterly."  It  is  divided  into  six 
books.  The  first  deals  at  length  with  the  notion  of  Possession. 
Savigny  says  that  "  by  the  possession  of  a  thing,  we  always  con- 
ceive the  condition,  in  which  not  only  one's  own  dealing  with  the 
thing  is  physically  possible,  but  every  other  person's  dealing 
with  it  is  capable  of  being  excluded."  The  exercise  of  property 
takes  place  by  virtue  of  this  condition  of  detention.  Savigny's 
object  was  to  consider  the  rights  of  possession  (jus  possessionis), 
and  not  the  right  to  possess  (jus  possedendi),  and  in  the  first  book 
he  defines  the  notion  in  form  and  in  substance  :  "  in  form  by 
describing  the  rights  which  require  possession  for  their  founda- 
tion, thus  giving  the  meaning  which  the  non-juridical  notion  of 
Detention  acquires  in  jurisprudence  so  as  to  allow  it  to  be  under- 
stood as  a  legal  entity,  as  Possession  ;  in  substance  by  enumerating 
the  conditions  which  the  Roman  law  itself  prescribes  for  the 
existence  of  Possession,  and  thus  pointing  out  the  precise  modi- 
fications under  which  Detention  operates  as  Possession."  The 
second  book  deals  with  the  acquisition  of  possession,  the  third 
with  its  loss  ;  the  fourth  treats  of  the  interdicts  that  act  as 
remedies  for  the  protection  of  possession  ;  the  fifth  deals  with 
possession  in  relation  to  legal  rights  that  are  separated  from 
actual  property  (juris  quasi  possessio),  such  as  personal  and  real 
easements  and  superficies  (buildings).  The  last  book  deals  with 


569 

a  subject  which  was  necessary  from  Savigny's  point  of  view  to 
complete  anything  like  exhaustive  treatment  of  so  important 
a  branch  of  law  as  the  doctrine  of  Possession.  He  says  :  "  The 
theory  of  Possession  has  been  discussed  in  the  first  five  books 
of  this  work  without  any  reference  whatever  to  anything  that 
may  have  been  incorporated  into  the  Roman  law  in  modern  times  ; 
and  this  method  of  inquiry  is  always  necessary  when  we  do  not 
desire,  by  confounding  the  old  law  with  the  new,  to  misunderstand 
both  together."  It  is  important  not  to  pass  over  the  historical 
question,  for  "of  all  the  important  errors  which  are  commonly 
entertained  as  to  the  Roman  view  of  Possession,  there  is  perhaps 
not  one  which  has  not  also  been  raised  in  the  Canon  and  German 
law."  He  goes  on  to  point  out  as  to  the  notion  of  Possession 
that,  while  in  Roman  law  it  referred  only  to  property  and  jura 
in  re,  subsequently  and  especially  by  the  Canon  law  it  was 
extended  to  every  possible  right,  including  rights  of  personal 
status  and  obligations.1  Thus  the  Roman  law  has  been  expanded 
to  meet  new  objects.  The  forms  by  which  Possession  is  protected 
were  also  modified  in  post-Roman  times.  The  Spoliatory  Suits 
in  so  far  as  they  applied  to  praedial  servitudes  were  a  legitimate 
extension  of  the  Roman  law  to  meet  cases  that  had  not  arisen 
when  that  law  was  in  its  prime.  Savigny  agrees  with  Miihlen- 
bruch  that  these  suits  in  so  far  as  they  were  legitimate  were  an 
extension  of  the  interdict  de  Vi  to  a  third  mala  fide  possessor. 

It  is  in  this  final  passage  of  his  work  that  Savigny  turns  on 
the  opponents  of  the  new  jurisprudence,  and  gladly  cites  in  his 
favour  Miihlenbruch,  the  author  of  the  Doctrina  Pandectarum. 
"  An  empty  cry  is  often  raised  against  the  endeavours  of  what 
is  called  the  historical  school,  to  clothe  every  right  exclusively 
with  Roman  forms,  and  thereby  to  do  injustice  to  the  original 
inventions  of  practice,  and  to  the  development  of  modern  scientific 
intelligence."  This  attack  from  first  to  last  irritated,  by  its 
obvious  injustice,  Savigny,  and  it  is  with  a  cry  of  delight  that  he 
shows  how  Miihlenbruch  shares  his  views  as  to  Spoliatory  Suits  : 
"  Could  this  author  have  been  a  prophetic  disciple  of  the  German 
historical  school  ?"  Savigny  goes  on  to  show  that  the  "absurd 
and  vexatious  "  possessory  suit  used  in  Germany,  Italy,  Spain, 
and  France  from  the  thirteenth  century  down  to  his  own  day, 

1  T  may  note  here  that  an  analysis  and  summary  of  Savigny's  latest  work 
—  that  on  Obligations  in  Roman  Law  (1851-3)— was  published  by  Mr.  Archibald 
Brown  in  1872. 


570  FRIEDRICH  CARL  VON   SAVIGNY 

a  suit  called  Possessorium  summarium  or  surmnariissimum,  (a 
suit  in  which  he  once  acted  as  a  judge),  could  not  be  fitted  into 
any  scientific  evolution  of  Roman  law.  He  adds  :  "  In  modern 
times  undoubtedly  legal  rules  have  been  adopted  which  were 
unknown  to  the  Roman  law ;  but  the  whole  Roman  theory  is 
so  far  from  being  broken  in  upon  by  the  above  rules,  that  on 
the  contrary  they  cannot  be  understood  except  by  treating  them 
as  additions  to  the  above  theory  [of  possession],  the  validity  of 
which  is  thereby  clearly  recognised."  To-day  in  dealing  with 
Savigny's  work  on  Possession  it  would  be  wise  to  preface  the 
study  of  it  by  a  close  perusal  of  Dr.  Roby's  lengthy  treatment 
of  the  doctrine  of  Possession  as  understood  in  the  times  of  the 
Antonines.  Savigny  would  have  appreciated  the  need  for  a  full 
study  of  this  elaborate  portion  of  Dr.  Roby's  work. 

It  is  valuable  to  read  what  Savigny's  pupil  Guenoux  said  of 
his  treatise  on  Possession  in  1839  : 

"On  sait  que  dans  ce  traite,  apres  avoir  passe  en  revue  les 
quarante-quatre  ouvrages  qui  composent  la  litterature  de  cette 
partie  du  droit,  1'auteur  s'est  livre  a  une  etude  profonde  et 
originale  des  textes,  et  qu'a  1'aide  de  la  philologie  et  de  1'histoire, 
il  a  etabli  sur  cette  matiere  si  difficile  des  doctrines  entierement 
nouvelles,  ou  plutot  a  retrouve  les  doctrines  des  anciens  juris- 
consultes  remains  ;  mais  ce  qu'on  ne  sait  pas,  c'est  qu'un  travail 
aussi  immense  a  ete  acheve  en  cinq  mois.  Cette  heureuse  fecon- 
dite  prouve  que  malgre  sa  jeunesse  Savigny  ne  s'etait  pas  trop 
hate  de  produire  ;  et  cette  fecondite  ne  s'est  pas  tarie,  parce  que, 
semblable  aux  grands  fleuves,  il  avait  attendu  pour  couler  que 
sa  source  fut  pleine. 

"L'histoire  et  la  science  du  droit  ont  certains  problemes  qui 
sont  eternellement  livres  aux  disputes  des  hommes,  et  dont  il 
parait  impossible  de  donner  une  solution  definitive.  Dans  la 
polemique  a  laquelle  ces  questions  ont  donne  lieu,  Savigny  n'a 
pas  montre  moins  de  sagacite  que  de  candeur  et  de  bonne  foi,  en 
retractant  ses  opinions  des  qu'un  de  ses  adversaires  en  avan9ait 
une  plus  probable.  Mais  il  est  une  foule  de  points  oil  Savigny  a 
eu  la  gloire  de  reunir  tous  les  suffrages,  et  son  livre,  quoique 
purement  theorique,  a  deja  eu  la  plus  heureuse  influence  sur  la 
pratique  du  droit  en  Allemagne,  influence  destinee  a  s'accroitre, 
car  pour  la  possession  comme  pour  tant  d'autres,  le  droit  romain 
est  souvent  la  raison  ecrite,  la  loi  veritable,  c'est  a  dire  1'expres- 
sion  des  rwpports  necessaires  qui  derivent  de  la  nature  et  des  choses."" 

This  remarkable  testimony  to  the  gifts,  the  serious  nature, 
and  the  abiding  influence  of  Savigny  written  in  1839  might  have 


FRIEDRICH  CARL  VON  SAVIGNY  571 

been  written  to-day,  for  the  greatness  of  Savigny  increases  with 
the  passing  years.  The  vigour  of  his  patriotism,  and  his  efforts 
on  the  behalf  of  the  poor  (as  in  the  cholera  outbreak  of  1831) 
were  scarcely  less  noticeable  than  his  efforts  as  a  teacher. 

In  1804  Savigny  married  Fraulein  Kunigunde  Brentano, 
daughter  of  a  Frankfort  banker,  a  member  of  a  family  well  known 
in  German  literature  from  the  correspondence  between  her  brother 
and  sister,  Clemens  Brentano  and  Bettina  von  Arnim,  with  the 
poet  Goethe.  This  marriage  was  an  ideal  union,  since  the  wife, 
herself  an  orphan,  had  every  thought  in  common  with  her 
husband.  There  were  six  children  of  the  marriage.  Two  of 
them  died  in  infancy.  The  only  daughter  married  M.  Constant  in 
de  Schinas,  Minister  of  Education  at  Athens,  where  she  died  in 
1835.  She  was  full  of  brilliant  promise,  and  her  early  death  was 
the  abiding  grief  of  Savigny 's  life.  It  is  said  that  the  enormous 
work  known  as  the  System  of  Modern  Roman  Law  was  under- 
taken to  help  him  to  pass  through  this  sorrow. 

Shortly  before  his  marriage  Savigny  had  severed  his  con- 
nection with  the  University  of  Marburg,  and,  refusing  tempting 
offers  from  the  Universities  of  Heidelberg  and  Greifswald,  he  eet 
out  with  his  wife  on  a  tour  of  research  to  certain  famous  libraries, 
to  the  libraries  of  Heidelberg,  Stuttgart,  Tubingen,  Strasbourg, 
and  Paris.  In  Paris  he  had  the  misfortune  to  lose  (by  robbery) 
all  the  material  that  he  had  collected  through  Germany.  He 
called  his  old  pupil  Joseph  Grimm  to  his  aid,  and  with  his  help 
and  the  help  of  his  wife  and  one  of  her  sisters  they  conquered 
the  abundant  French  manuscript  material,  including  the  un- 
published and  almost  indecipherable  letters  of  the  great  Cujas. 
In  1808  he  took  up  for  a  year  and  a  half  professorial  work  at  the 
University  of  Landshut.  When  he  left  for  Berlin  the  grief  of 
the  students  was  unaffected.  His  sister-in-law  Madame  von 
Arnim,  who  was  staying  with  him  at  the  time  of  the  change, 
wrote  to  Goethe : 

"  Que  Savigny  soit  savant  tant  qu'il  voudra,  la  bonte  de  son 
caractere  surpasse  encore  ses  qualites  les  plus  brillantes.  Les  etu- 
diants  Padorent,  ils  sentent  qu'ils  perdent  en  lui  un  bienfaiteur. 
Les  professeurs  le  cherissent  egalement,  surtout  les  theolcgiens.  .  .  . 
Savigny  avait  donne  une  vie  nouvelle  a  1'universite,  qu'il  avait 
su  reconcilier  les  professeurs  ou  du  moins  calmer  leurs  infinities, 
mais  que  son  influence  bienfaisante  s'etait  fait  surtout  sentir 
aux  etudiants  dont  il  avait  augment  6  la  liberte  et  1'independance. 


572  FRIEDRICH  CARL  VON  SAVIGNY 

Je  ne  saurais  vous  exprimer  le  talent  de  Savigny  a  traiter  avec  la 
jeunesse.  Les  efforts,  les  progres  de  ses  eleves  lui  inspirent  un 
veritable  enthousiasme  il  se  sent  heureux  s'ils  reussissent  a 
traiter  les  sujets  qu'il  leur  propose  ;  il  voudrait  leur  ouvrir  le 
fond  de  son  coaur  ;  il  s'occupe  de  leur  sort,  il  pense  a  leur  avenir, 
et  leur  trace  la  route  qu'eclaire  son  zele  bienveillant.  On  peut 
dire  de  Savigny  que  Pinnocence  de  sa  jeunesse  est  devenue 
1'ange  gardien  de  sa  vie.  Le  fond  de  son  caractere  est  d'aimer  ceux 
auxquels  il  consacre  toutes  les  forces  de  son  esprit  et  de  son  ame, 
et  n'est-ce  pas  la  ce  qui  met  le  sceau  a  la  veritable  grandeur  ? 
La  simplicite  naive  avec  laquelle  sa  science  descend  au  niveau 
de  chacun  le  rend  doublement  grand." l 

On  the  foundation  of  the  University  of  Berlin  in  1810,  one  of 
the  first-fruits  of  the  great  educational  campaign  that  sprang  out 
of  the  disastrous  field  of  Jena,  Wilhelm  von  Humboldt,  the  head 
of  the  new  Prussian  educational  system,  offered  Savigny  the  chair 
of  law,  which,  chiefly  from  patriotic  motives,  he  accepted.  The 
jurist  held  this  chair  until  1842.  It  was  his  practice  to  lecture  on 
the  Pandects  (excluding  the  law  of  succession)  in  the  winter 
Semester  and  the  Institutes  in  the  summer  Semester.  He  also 
lectured  on  Ulpian,  Gaius,  and  the  Prussian  Landrecht.  Among 
his  pupils  at  Berlin  were  Hollweg,  Klenze,  Goschen,  the  editor  of 
Gaius,  Blume,  Rudorff,  Keller,  Dirksen,  Barkow,  Booking,  and 
Puchta.  He  also  sat  on  the  University  Appellate  Tribunal, 
known  as  the  Spruch-Collegium,  to  which  questions  of  law  were 
referred  for  decision  by  other  tribunals.  At  Berlin  Savigny 
became  an  intimate  friend  and  pupil  of  the  great  Niebuhr,  whose 
mind  and  character  so  closely  coincided  with  his  own,  and  who 
pays  him  a  just  tribute  in  the  preface  to  his  History  of  Rome. 

In  1811,  Savigny  was  elected  a  member  of  the  Berlin  Academy, 
a  precedent  followed  by  most  of  the  Academies  of  Europe  in 
later  years,  and  to  this  body  he  read  papers  on  the  Roman 
written  contract,  on  the  Voconian  law,  on  the  lawsuit  relating 
to  the  loan  of  money  by  Marcus  Brutus  to  the  town  of  Salamina, 
on  the  Protection  of  Infants  and  the  lex  Plsetoria,  on  the  Rights 
of  Creditors  under  the  old  Roman  law,  on  the  History  of  the 
Nobility  hi  Modern  Europe. 

In  1814  the  jurist  (who  was  then  acting  as  law  tutor  to  the 
Prince  Royal  of  Prussia)  issued  a  brief  work  entitled  De  la  Voca- 
tion de  noire  siecle  pour  la  legislation  et  la  science  du  droit,  in  which 
he  closely  and  brilliantly  criticized  the  proposed  Civil  Cede  as 

1  Goethe's  liriefwechsel  mil  einem  Kinde,  *oi.  ii.,  pp.  171-188  (2nd  ed.). 


FEIEDRICH   CARL  VON   SAVIGNY  573 

not  in  fact  adopting,  as  it  proposed  to  adopt,  the  principles  of 
the  Roman  law  at  all.  In  1817  he  was  given  the  honorary  title 
of  Geheimer  Justiz-Rath  in  recognition  of  his  work  on  the  Council 
of  State. 

In  1819  he  was  appointed  Counsellor  to  the  Court  of  Revision 
and  Cassation  at  Berlin  which  had  been  formed  to  take  the  place 
of  the  Courts  at  Diisseldorf  and  Coblentz.  This  practical  work 
was  of  the  greatest  benefit  to  his  juridical  studies.  A  little  later 
a  nervous  breakdown,  the  result  probably  of  years  of  close  work, 
became  imminent,  and  in  fact  from  1822  to  1828  he  was  subject 
to  a  form  of  nervous  illness  that  rendered  at  times  all  work 
impossible.  M.  Guenoux  attributes  to  this  illness  the  delay  in 
the  publication  of  the  History  of  Roman  Law  in  the  Middle 
Ages.1  The  first  volume  appeared  in  1815,  but  the  sixth  was  not 
issued  until  1831. 

Savigny  laid  the  greatest  stress  on  the  necessity  of  tracing 
the  course  of  Roman  law  through  the  Middle  Ages.  He  writes 
to  M.  Guenoux  :  "  Ignorer  ce  que  les  siecles  intermediaires  ont 
ajoute  au  droit  romain  primitif  est  absolument  impossible,  tout 
ce  que  nous  apprennent  nos  professeurs  et  les  livres  modernes 
en  est  imbu."  No  student  of,  let  us  say,  Brae  ton  could  doubt 
this,  and  Maitland  in  his  brilliant  papers  on  "  The  Beatitude  of 
Seisin "  (Law  Quarterly  Review,  vol.  iv.)  has  shown  how  the 
doctrine  of  possession  in  English  law  completely  changed  as  the 
pressure,  so  to  speak,  of  the  Roman  lawyers  died  away.  Conse- 
quently Savigny  determined  to  deal  exhaustively  with  the 
history  of  Roman  law  in  the  Middle  Ages.  His  great  work  falls 
into  two  parts  :  the  period  before  and  the  period  after  the  founda- 
tion of  the  School  of  Bologna  about  the  year  1100.  In  the  first 
two  volumes  he  deals  with  the  earlier  period,  first  in  general 
and  then  in  detailed  form.  He  begins  with  the  sources  of  law 
and  judicial  organization  in  Rome  and  the  provinces  in  the  fifth 
century.  He  follows  this  by  treating  the  same  themes  in  relation 
to  the  states  that  arose  on  the  ruins  of  the  Western  Empire.  In 
the  second  volume  he  deals  with  Roman  law  in  the  kingdoms 
of  Burgundy,  of  the  Visigoths,  in  the  German  Empire,  in  Saxon 
England,  in  the  kingdom  of  the  Ostrogoths,  in  Italy  under  the 
Greek  domination  and  under  the  Pope  and  the  Emperor  in  Lom- 

1  Geschichte  des  rdmischen  Rechts  im  Mittdalter  (6  vols.,  8vo.,  Heidolborg, 
1815-31).  A  second  edition  began  to  bo  issued  irom  Heidolborg  in  1834. 
The  last  and  seventh  volumo  appeared  in  1851,  with  a  preface  dated  in  May 
of  that  year. 


574  FBIEDBICH    GAEL   VON    SAVIGNY 

bardy.  He  finally  shows  the  part  played  by  the  Church  in 
preserving  the  Roman  law.  In  the  third  volume  he  collects 
much  material  on  the  literature  of  Roman  law  after  the  founda- 
tion of  the  School  of  Bologna,  and  has  an  important  chapter  on 
the  history  of  the  European  Universities.  Indeed  this  general 
volume  dealing  with  the  history  of  Roman  law  from  the  twelfth 
century  to  the  end  of  the  Middle  Ages  is  professedly  a  literary 
history  of  law,  since  Savigny  found  that  such  a  history  was  in- 
dispensable for  the  comprehension  of  the  evolution  of  the  law. 
He  says  on  this  point : 

"  Le  but  de  toute  composition  historique  est  d'offrir  une  repre- 
sentation complete  et  vivante  du  passe.  Plus  ce  passe  est  eloigne, 
moins  on  a  de  moyens  d'arriver  a  ce  but.  Ainsi  Ton  decouvre 
un  detail,  mais  on  ne  sait  comment  le  rattacher  a  1'ensemble, 
ou  il  lui  manque  cette  lumiere  qui  eclaire  un  fait  historique 
comme  un  fait  contemporain.  Si  le  but  de  Fhistoire  ne  peut- 
etre  atteint  completement,  on  ne  doit  rien  negliger  de  ce  qui 
nous  en  rapproche  ;  1'on  ne  doit  done  rejeter  aucun  detail  comme 
peu  important  en  lui-meme,  ou  comme  etranger  a  Pobjet  direct 
de  notre  etude." 

So,  having  given  us  the  means  of  studying  the  legal  literary 
history  of  the  period,  a  bibliography  of  the  subject  (with  full 
reference  to  the  work  of,  amongst  others,  Johannes  Andrese  of 
Bologna,  Pastrengo  the  friend  of  Petrarch,  Severinas,  Trithemius, 
Diplovataccius,  Johann  Fichard,  Benavidius,  Pancirolus,  Taisand  : 
we  miss  in  this  place  the  name  of  Aymarus  Rivallius,  whose 
important  history  of  the  Civil  Law  in  five  books  was  published 
at  Mainz  in  15391),  and  treated  of  the  Universities,  he  passes 
on  to  the  legal  sources  possessed  by  the  Glossators  and  considers 
at  length  their  work.  In  the  fourth  volume  we  get  the  elaborate 
detail  foreshadowed  in  the  previous  volume.  Here  we  can 
read  at  large  in  more  than  five  hundred  closely  printed  pages  of 
Irnerius,  of  the  four  famous  jurisconsults  of  Bologna  (Bulgarus, 
Martinus,  Jacobus,  and  Hugo),  of  Rogerius,  the  pupil  of  Bulgarus, 
Placentinus,  Johannes  Bassianus,  Pillius,  and  many  other 
Glossators,  including  the  famous  Vacarius  and  scarcely  less  famous 
Azo.  In  the  middle  of  the  thirteenth  century  a  new  and  dismal 

1  There  is  a  copy  of  this  work  in  the  fine  civil  law  section  of  Lincoln's 
Inn  Library.  Savigny  gives  a  brief  note  on  Rivallius  in  his  fourth  volume 
(pp.  256-7)  and  declares  this  work  to  be  "  romarquable,  malgre  sos  defauts, 
commo  lo  premier  qui  ait  6te  fait  sur  1'histoiro  du  droit." 


FRIEDRICH   CARL   VON   SAVIGNY  575 

era  opened  for  the  study  of  law  :  the  text  was  swallowed  up  in 
detailed  comment  and  the  true  treatise  disappeared.  Indeed 
the  School  of  the  Glossators  was  dead.  In  the  fourteenth  century 
fortunately  a  partial  revival  of  scientific  method  came  which 
carried  the  science  of  law  on  to  the  time  of  the  Renaissance,  when 
it  was  able  to  assert  its  place  in  the  thought  of  the  world.  Savigny 
traces  in  detail  this  long  movement,  and  illustrates  each  step 
with  ample  reference  to  the  works  of  the  jurisconsults  of  the 
fourteenth  and  fifteenth  centuries.  In  this  work  he  threw  open 
a  field  of  research  that  will  occupy  jurists  for  centuries  to  come. 
Maitland's  work  in  England  is  but  a  sample  of  what  has  to  be 
done  throughout  Europe. 

Savigny's  work  on  The  Vocation  of  our  Age  for  Legislation 
and  Jurisprudence,  issued  in  1814  and  passing  to  a  second  edition 
in  1828,  was  a  notable  publication.  It  was  neither  more  nor  less 
than  an  attack  on  the  system  of  the  Code  imposed  upon  Europe. 
Napoleon's  Code  he  declares  "served  him  as  a  bond  the  more 
to  fetter  nations  :  and  for  that  reason  it  would  be  an  object  of 
terror  and  abomination  to  us,  even  had  it  possessed  all  the 
intrinsic  excellence  which  it  wants."  He  attacks  the  Code,  how- 
ever, chiefly  from  the  point  of  view  of  a  juridical  thinker,  since 
at  the  overthrow  of  Napoleon  in  1814  his  Code,  which  had  been 
in  force  "in  parts  of  Bavaria,  Hesse  Darmstadt,  the  Rhenish 
provinces  of  Prussia,  the  kingdom  of  Westphalia,  Baden,  the 
Hanseatic  towns,  and  some  other  ultra-Rhenish  provinces," 
was  discarded  by  all  Germany  with  the  exception  of  the  Rhenish 
provinces.  The  danger  from  a  foreign  Code  no  longer  existed ; 
but  there  still  existed  the  danger  of  a  Code  at  all.  The  eminent 
lawyer  Thibaut  of  Heidelberg  advocated  the  establishment  of 
a  German  Code,  and  Savigny  determined  to  throw  his  great  weight 
in  the  other  scale  and  restore  a  natural  evolution  of  law.  He 
attacked  the  demand  for  a  Code  first  on  the  ground  that  the  times 
being  as  they  were,  and  the  preparation  for  a  Code  (thanks  to 
the  paucity  of  great  German  jurists  in  the  eighteenth  century) 
inadequate  and  the  language  juridically  undeveloped,  it  was 
not  then  practicable  to  construct  a  Code  ;  and  secondly  on  the 
ground  that  the  three  great  existing  Codes — the  Code  Napoleon, 
the  Prussian  Landrecht,  and  the  Austrian  Gesetzbuch — proved 
that  in  practice  Codes  were  not  successful.  Savigny's  attack 
on  the  Code  Napoleon  was  just,  though  he  admits  that  its  form 
was  embittered  by  patriotic  feelings.  He  says  : 


576  FRIEDRICH   CARL   VON    SAVIGKY 

"The  Revolution,  then,  had  annihilated,  together  with  the  old 
constitution,  a  great  part  of  the  law  ;  both,  rather  from  a  blind 
impulse  against  everything  established,  and  with  extravagant 
senseless  expectation  of  an  undefined  future,  than  in  the  hope 
of  any  definite  improvement.  As  soon  as  Napoleon  had  subjected 
everything  to  a  military  despotism,  he  greedily  held  fast  that  part 
of  the  revolution  which  answered  his  purpose  and  prevented  the 
return  of  the  ancient  constitution — the  rest,  which  all  were  now 
sick  of,  and  which  might  have  proved  an  obstacle  to  himself, 
was  to  disappear ;  only  this  was  not  altogether  practicable,  as 
the  effects  of  the  years  that  had  elapsed  upon  the  modes  of 
thought,  manners  and  feelings  of  the  people,  were  not  to  be  effaced. 
This  half-return  to  the  former  state  of  tranquillity  was  certainly 
beneficial,  and  gave  the  Code,  which  was  founded  about  this 
time,  its  principal  tendency.  But  this  return  was  the  result 
of  lassitude  and  satiety,  not  the  victory  of  nobler  thoughts 
and  feelings  ;  nor,  indeed,  would  there  have  been  any  opening 
for  such  in  that  condition  of  public  affairs  which,  to  the  plague 
of  Europe,  was  preparing.  This  want  of  a  sound  basis  is  dis- 
cernible in  the  discussions  of  the  Conseil  d'fltat,  and  must  impress 
every  attentive  reader  with  a  feeling  of  despondency.  To  this 
was  now  added  the  immediate  influence  of  the  political  constitu- 
tion. This,  when  the  Code  was  framed,  was,  in  theory,  republican 
in  the  revolutionary  sense  ;  but  all,  in  reality,  inclined  to  the 
recently  developed  despotism.  The  elements  of  uncertainty 
and  change  were  consequently  mixed  up  with  its  fundamental 
principles.  Thus,  for  example,  in  1803,  Napoleon  himself,  in  the 
Council  of  State,  pronounced  those  same  Substitutions  to  be 
injurious,  of  a  bad  moral  tendency  and  unreasonable,  which  were 
re-established  in  1806,  and,  in  1807,  adopted  into  the  Code. 
But  as  regards  the  state  of  public  feeling,  a  far  worse  consequence 
of  this  quick  succession  was,  that  the  last,  so  often  sworn  to, 
object  of  belief  and  veneration  was  in  its  turn,  annihilated,  and 
that  expressions  and  forms  came  more  and  more  frequently 
into  collision  with  ideas,  whereby,  in  the  greater  number,  even 
the  last  remains  of  truth  and  moral  consistency  were  necessarily 
extinguished.  It  would  be  difficult  to  imagine  a  state  of  public 
affairs  more  unfavourable  for  legislation  than  this." x 

Turning  to  the  technical  side  of  the  Code,  Savigny  argues 
that  the  Conseil  d'etat  could  have,  from  its  ignorance'  of  general 
juridical  doctrines,  little  influence  on  the  Code.  It  was,  as  a 
matter  of  fact,  the  work  of  jurists  who,  so  far  as  Roman  law 

1  I  use  the  translation  made  from  the  1828  edition  by  Mr.  Abraham 
Hayward  in  1831.  (London :  printed  but  not  for  sale.)  A  copy,  here  used, 
is  in  the  Acton  Library  at  Cambridge  (C.  48,  929).  There  is  another  copy 
in  the  Middle  Temple  Library. 


FRIEDRICH   CARL   VON    SAVIGNY  577 

was  concerned,  necessarily  based  their  work  upon  Pothier. 
Dupin  declared  that  three-fourths  of  the  Civil  Code  was  literally 
extracted  from  his  treatises.  "A  juridical  literature  in  which 
he  stands  alone,  and  is  almost  revered  and  studied  as  the  source, 
must,  notwithstanding  [the  real  value  of  Pothier],  be  pitiable." 
Savigny  proceeds  to  eviscerate  the  framers  of  the  Code,  Bigot 
Preameneu,  Portalis,  and  Maleville.  Certainly  they  were  not 
supremely  intelligent  jurists.  The  results  of  their  work  were 
bad  in  the  extreme.  In  the  selection  of  subjects  "the  most 
palpable  defects  are  to  be  found  by  wholesale."  But  worse 
was  to  follow.  "  Far  more  important  in  this  respect,  and  much 
more  difficult  in  itself,  is  the  selection  of  rules  on  the  subjects 
actually  treated  of ;  consequently  the  finding  of  rules,  by  which 
particular  cases  are  to  be  governed  in  future.  Here  the  object 
was  to  master  the  leading  principles,  on  which  all  certainty  and 
efficacy  in  juridical  matters  depend,  and  of  which  the  Romans 
afford  us  so  striking  an  example.  In  this  point  of  view,  however, 
the  French  work  presents  a  melancholy  spectacle."  The  funda- 
mental and  precise  notions — the  rights  of  things  and  of  obliga- 
tions— upon  which  the  Roman  law  of  Property  depends  are  in 
the  Code  vague  and  ill  understood,  and  this  leads  to  a  confusion 
of  ideas  which  in  the  form  of  a  Code  is  dangerous  to  the  public. 
Last,  Savigny  attacks  the  provisions  in  the  Code  for  dealing  with 
cases  that  are  not  in  fact  covered  by  a  precise  section  of  the  Code. 
It  was  not  possible  to  regard  the  rules  dealing  with  such  cases 
as  organic  developments  out  of  the  Code — with  which  we  may 
compare,  though  Savigny  does  not  give  the  parallel,  the  growth 
of  the  English  common  law  to  meet  new  cases — since  the  Code 
itself  had  no  organic  unity.  The  Code  is  only  a  mechanical 
mixture  of  the  Revolution  and  pre-Revolution  laws,  and  the 
mixture  is  not  even  a  logical  whole,  a  formal  unity  that  might 
be  logically  developed  to  meet  new  cases.  Consequently  the 
supplemental  rules  had  to  be  supplied  from  outside  sources,  such 
as  (that  vague  thing)  the  law  of  nature,  the  Roman  law  and  local 
pre-existing  laws,  and  the  general  theory  of  law.  This  introduc- 
tion of  an  abrogated  law  into  the  Cour  de  Cassation  is  a  real  evil. 
A  practice  of  the  Courts  could  grow  up,  but  no  real  juridical 
growth.  The  rules  could  indeed  be  applied  at  the  tyrannical 
discretion  of  the  judges.  This  indictment  of  the  French  Code, 
if  we  except  the  political  note  at  the  beginning,  is  effective  in 
the  extreme,  and  should  be  considered  in  every  step  towards 

38 


578  FBIEDRICH    CARL   VON  SAVIGNY 

codification.  Before  considering  his  general  notion  of  legal 
reform  it  will  be  well  to  say  something  of  Savigny's  criticism 
of  the  German  and  Austrian  Codes. 

Savigny's  criticism  of  the  Prussian  Landrecht  designed  by 
Frederick  II.  in  1746  is  not  less  penetrating  though  his  natural 
if  somewhat  unjudicial  hatred  of  France  and  all  her  works  induces 
him  to  attribute  to  the  Prussian  jurists  a  far  nobler  outlook  than 
that  which  inspired  Napoleon  and  the  unhappy  framers  of  the 
Code.  We  may  doubt  if  Suarez  was  a  greater  man  than  Pothier, 
or  Volkmar  (or  Pachaly)  than  Portalis,  but  in  any  event  Savigny 
declares  that  if  "we  regard  the  composition  of  the  Landrecht, 
it  confirms  my  opinion  that  no  Code  should  be  undertaken 
at  the  present  time."  Frederick  II.  designed  a  Code  that  should 
abolish  judge-made  law  altogether ;  but,  in  fact,  the  Landrecht 
in  its  latest  form  gave  the  judge  full  powers  of  interpretation. 
But  still  this  was,  after  all,  only  for  particular  cases.  "With 
the  Romans  all  depends  on  the  jurist,  by  his  thorough  mastery 
of  the  system,  being  placed  in  a  condition  to  find  the  law  for  every 
case  that  may  arise.  This  is  effected  by  the  precise  individual 
perception  of  particular  legal  relations,  as  well  as  by  the  thorough 
knowledge  of  the  leading  principles,  their  connection  and  sub- 
ordination ;  and  where,  with  them,  we  find  law  cases  in  the  most 
restricted  application,  they,  notwithstanding,  constantly  serve 
as  the  embodied  expression  of  the  general  principle."  This  was 
not  the  case  with  the  Landrecht,  the  provisions  of  which  "  neither 
reach  the  height  of  universal  leading  principles,  nor  the  distinct- 
ness of  individuality,  but  hang  wavering  between  the  two,  whilst 
the  Romans  possess  both  in  their  natural  connection."  Savigny 
goes  on  to  criticize  the  German  language,  "  which  generally 
speaking,  is  not  juridically  formed,  and  least  of  all  for  legislation." 
The  French  language,  he  adds,  has  a  great  advantage  in  this 
respect :  that  it  had  not  been  better  used  "  is  accounted  for  by 
the  low  state  of  knowledge  "  in  France.  The  Austrian  Gesetzbuch 
was  begun  in  1753;  by  1765  the  groundwork  of  the  Code,  "a 
manuscript  work  of  eight  large  folios,  mostly  extracted  from  the 
commentators  on  the  Roman  law,"  was  complete.  This  was 
abstracted  by  Horten,  digested  into  code  form  by  Martini,  pub- 
lished, submitted  to  the  provincial  authorities  and  the  Univer- 
sities, and,  slightly  revised,  issued  as  the  Gesetzbuch  in  three 
parts,  covering  561  widely  printed  pages.  The  Empress  Maria 
Theresa  directed  the  draughtsmen  to  employ  "  natural  equity  " 


FRIEDRICH   CABL   VON    SAVIGNY  579 

as  well  as  Roman  law.  In  fact,  there  was  no  attempt  to  cover 
all  particular  cases.  The  notions  of  legal  relations  were  defined, 
and  the  most  general  rules  laid  down.  Savigny  considered  these 
notions  as  too  general  and  undefined,  and  often  based  on  an 
imperfect  appreciation  of  the  Roman  authorities.  The  Roman 
clarity  of  definition  is  absent.  Moreover,  the  practical  rules  of 
the  Gesetzbuch  are  as  incapable  as  the  rules  of  the  Code  Napoleon 
of  meeting  particular  cases.  The  Gesetzbuch  falls  back  for 
the  solution  of  particular  cases  on  cases  analogous  to  those 
provided  for,  and  on  "  natural  law  "  ;  the  principle  carries  one 
but  a  short  way,  and  the  use  of  "  natural  law  "  is  "  fraught 
with  danger  to  the  administration  of  justice."  The  Gesetzbuch, 
like  the  Code  and  the  Landrecht,  therefore  confirms  Savigny's 
argument  "  that  the  present  time  has  no  aptitude  for  the  under- 
taking of  a  Code ."  The  unsuccess  of  three  such  efforts  shows  that 
"  there  must  be  some  unsurmountable  obstacles  in  the  juridical 
state  of  the  whole  age." 

What  then,  asks  Savigny,  are  we  to  do  when  there  are  no 
Codes  ?  He  would  hold  to  the  "  same  mixed  system  of  common 
law  and  provincial  law,  which  formerly  prevailed  throughout  the 
whole  of  Germany  .  .  .  provided  [that]  jurisprudence  does  what 
it  ought  to  do,  and  what  can  only  be  done  by  means  of  it."  We 
have  inherited  "an  immense  mass  of  juridical  notions  and 
theories.  ...  At  present,  we  do  not  possess  and  master  this 
matter,  but  are  controlled  and  mastered  by  it,  whether  we  will 
or  not.  This  is  the  ground  of  all  the  complaints  of  the  present; 
state  of  our  law,  which  I  admit  to  be  well  founded  :  this,  also,  is 
the  sole  cause  of  the  demand  for  Codes."  Savigny  adopts  the 
Hegelian  position  :  "  It  is  impossible  to  annihilate  the  impressions 
and  modes  of  thought  of  the  jurists  now  living — impossible 
to  change  completely  the  nature  of  existing  legal  relations  ;  and 
on  this  twofold  impossibility  rests  the  indissoluble  organic  con- 
nection of  generations  and  ages  ;  between  which,  development 
only,  not  absolute  end  and  absolute  beginning,  is  conceivable." 
Savigny  with  a  brilhant  flash  of  juridical  insight  turns  the  in- 
destructibleness  of  legal  notions  to  permanent  gain.  He  says  : 
"  There  is  consequently  no  mode  of  avoiding  this  overruling 
influence  of  the  existing  matter  ;  it  will  be  injurious  to  us  so  long 
as  we  ignorantly  submit  to  it ;  but  beneficial  if  we  oppose  to  it 
a  vivid  creative  energy — obtain  the  mastery  over  it  by  a  thorough 
grounding  in  history,  and  thus  appropriate  to  ourselves  the  whole 


580  FBIEDRICH    CARL   VON    SAVIGNY 

intellectual  wealth  of  preceding  generations."  In  any  other 
process  the  law  may  lose  its  consciousness  of  nationality,  and  only 
through  history  "  can  a  lively  connection  with  the  primitive 
state  of  the  people  be  kept  up  ;  and  the  loss  of  this  connection 
must  take  away  from  every  people  the  best  part  of  its  spiritual 
life."  Savigny  goes  on  to  say  that  the  object  of  the  strict 
historical  method  of  jurisprudence  "  is  to  trace  every  established 
system  to  its  root,  and  thus  discover  an  organic  principle,  whereby 
that  which  still  has  life  may  be  separated  from  that  which  is 
lifeless  and  only  belongs  to  history."  The  importance  of  Roman 
law  is  that  "  by  reason  of  its  high  state  of  cultivation  "  it  serves 
as  a  pattern  for  the  labours  of  the  modern  jurist.  The  importance 
of  the  local  or  customary  law  is  that  "  it  is  directly  and  popularly 
connected  with  us."  The  modifications  of  these  two  primitive 
systems  are  important  as  showing  how  both  Roman  law  and  local 
law  have  varied  under  the  stress  of  actual  needs  and  the  applica- 
tion of  legal  theory.  Roman  law  must  be  grappled  with  at  the 
root ;  we  must  enter  into  the  minds  of  the  Roman  jurists  if  we 
are  to  appreciate  it  and  apply  it  to  modern  uses.  Do  not  be 
afraid  because  the  textbooks  are  as  yet  imperfect :  "  Everything 
which  Thibaut  here  says  of  the  uncertainty  of  our  textbooks 
is  equally  applicable  to  the  Scriptures.  In  these,  also,  the 
critic  will  never  find  an  end  ;  but  he  who,  on  the  whole,  is  able 
to  find  nourishment  and  joy  in  them,  will  certainly  not  be  troubled 
upon  that  account."  Savigny's  appreciation  of  the  spiritual 
weakness  of  the  Higher  Criticism  of  the  Bible  then  growing  into 
a  force  of  negation  is  an  important  phase  of  his  high  and  spiritual 
nature. 

Savigny,  with  his  habitually  long  vision,  insisted  that  "  this 
diffusion  of  legal  science  ought  to  take  place,  not  only  amongst 
the  jurists  of  the  learned  class,  the  teachers  and  writers,  but 
even  amongst  the  practical  lawyers."  He  demands  the  approxi- 
mation of  theory  and  practice,  and  applauds  a  proposal  for  free 
communication  between  the  Faculties  of  Law  and  the  Courts. 
Mr.  Hayward  in  a  note  (p.  149)  points  out  that  "from  the  time 
of  Maximilian,  the  immediate  predecessor  of  Charles  V.,  the  Law 
Faculties,  consisting  of  the  Professors  of  the  German  Universities, 
have  constituted  Courts  of  Appeal  in  the  last  resort.  The 
appellants,  I  believe,  may  select  any  University  they  please  ; 
for  instance,  a  case  decided  in  Hanover  may  be  sent  to  a  Prussian 
University."  It  will  be  remembered  that  Savigny's  father 


FBIEDRICH  CARL    VON   S AVION Y  581 

sat  on  one  of  these  University  Courts.  But  Savigny  says  that 
in  his  time  these  University  Courts  had  become  even  more 
mechanical  than  the  regular  Courts. 

Savigny  having  shown  how  the  texts  or  legal  authorities 
can  be  based  "  on  a  profound  and  comprehensive  science,"  and 
how  the  judges  may  be  made  efficient,  proceeds  to  deal  with  the 
third  necessity  of  an  efficient  legal  system,  good  procedure.  To 
reform  procedure,  he  says,  we  must  have  recourse  to  the  legisla- 
ture. The  legal  system  so  established  would  moreover  derive 
great  assistance  from  the  legislature,  which  would  settle  disputed 
points  of  law  (acting  through  Orders  of  Court)  and  record  old 
customs  that  have  received  validity  in  practice.  Then  at  last 
the  historical  matter  of  law  will  be  transformed  into  national 
wealth,  and  the  nation  will  possess  a  national  system  of  its  own 
and  not  "  a  feeble  imitation  of  the  Roman  system."  Savigny 
goes  on  to  ask  what  is  to  be  done  under  these  circumstances  with 
the  Landrecht  and  the  Gesetzbuch.  It  seemed  clear  that  no 
"  real,  living  jurisprudence  "  could  be  founded  upon  any  one  of 
the  three  Codes  or  upon  the  then  proposed  new  German  Code. 
The  study  of  law  must  go  on  as  if  the  Codes  did  not  exist ;  the 
study,  that  is,  of  both  the  common  law  and  the  provincial  laws  ; 
it  must  go  on  in  the  Universities,  and  there  must  be  intimate 
intercourse  between  all  the  German  Universities. 

No  one  can  read  Savigny's  attack  on  the  Code  movement  of 
his  age  without  feeling  the  immense  weight  that  is  due  to  his 
opinions.  Step  by  step  he  urges  an  unanswerable  argument 
and  lays  the  foundation  of  the  only  true  system  of  practical 
jurisprudence.  To-day  this  work  is  of  peculiar  value  and  interest, 
for  on  the  one  hand  we  have  England,  a  country  that  has  in  fact 
followed,  unconsciously  enough  but  in  most  exact  detail,  the 
lines  of  development  suggested  by  Savigny,  and  on  the  other 
hand  we  have  the  rest  of  Europe  under  the  dominance  of  that 
very  system  of  Codes  denounced  by  the  greatest  jurist  that 
Europe  has  produced.  Who  is  right  ?  Savigny,  England,  and 
the  Anglo-Saxon  nations  throughout  the  world,  or  Napoleon  and 
his  Europe  ? 

Savigny's  Preface,  written  in  September,  1839,  to  his  great 
work  System  des  heutigen  romischen  Bechts  (in  eight  volumes, 
five  published  in  1840-1  and  the  rest  in  1847-9)  amplifies  with 
even  a  broader  outlook  the  views  expressed  in  the  first  edition  of 
The  Vocation  of  our  Age  for  Legislation  and  Jurisprudence  (1814), 


682  FRIEDKICH    CAUL   VON    SAVIGNY 

and  repeated  in  the  second  edition  (1828)  of  that  finely  critical 
essay.  The  material  for  the  work  on  Modern  Roman  Law  had 
been  "gradually  collected  and  worked  up  in  the  courses  of  in- 
struction "  delivered  by  Savigny  for  a  period  of  forty  years,  and 
the  work  itself  is  his  ripe  and  incomparable  judgment  on  the  sub- 
ject. Pleading  as  he  does  for  "  the  continuous  cultivation  "  of  the 
science  of  law,  he  feels  the  danger  of  the  accumulation  of  material. 

"  To  prevent  this  danger  we  must  desire  that  from  time  to  time 
the  whole  mass  of  that,  which  has  been  handed  down  to  us,  should 
be  newly  examined,  brought  into  doubt,  questioned  as  to  its 
origin.  This  will  be  done  by  placing  ourselves  artificially  in  the 
position  of  having  to  impart  the  material  transmitted,  to  one 
unskilled,  doubting,  controverting.  The  fitting  spirit  for  such 
a  testing  work  is  one  of  intellectual  freedom,  independence  of  all 
authority  ;  in  order,  however,  that  this  sense  of  freedom  may 
not  degenerate  into  arrogance,  there  must  step  in,  the  natural 
fruit  of  an  unprejudiced  consideration  of  the  narrowness  of  our 
own  powers,  that  wholesome  feeling  of  humility  which  can 
alone  render  that  freedom  of  view  fruitful  of  performances  of 
our  own.  From  two  wholly  opposite  standpoints,  we  are  thus 
directed  to  one  and  the  same  need  in  our  science.  It  may  be 
described  as  a  periodically  recurring  examination  of  the  work 
accomplished  by  our  predecessors,  for  the  purpose  of  removing 
the  spurious,  but  of  appropriating  to  ourselves  the  true  as  a  lasting 
possession,  which  will  place  us  in  the  condition,  according  to  the 
measure  of  our  powers  in  the  solution  of  the  common  problem, 
of  coming  nearer  to  the  final  aim.  To  institute  such  an  examina- 
tion for  the  point  of  time,  in  which  we  actually  are,  is  the  object 
of  the  present  work." 

He  goes  on  to  defend  "  the  historical  school "  (of  which  he 
was  certainly  the  most  distinguished  representative)  from  the 
unjust  criticism  to  which  it  had  been  subjected.  The  aim  of 
that  school  was  not  (and  one  may  add  is  not,  for  to-day  the 
historical  school  is  one  of  the  most  important  agents  of  thought 
in  Europe)  to  "subject  the  present  to  the  government  of  the 
past."  The  historical  view  of  legal  science  (and  we  may  say 
of  any  science)  "  consists  in  the  uniform  recognition  of  the  value 
and  the  independence  of  each  age,  and  it  merely  ascribes  the 
greatest  weight  to  the  recognition  of  the  living  connection  which 
knits  the  present  to  the  past,  and  without  the  recognition  of  which 
we  recognize  merely  the  external  appearance,  but  do  not  grasp 
the  inner  nature,  of  the  legal  condition  of  the  present." 


FEIEDBICH    CARL   VON    SAVIGNY  583 

Savigny's  object  was  certainly  not  to  assign  an  "  immoderate 
mastery  "  to  Roman  law,  but  he  claims  that  a  thorough  knowledge 
of  that  law  is  indispensable  for  a  comprehension  of  existing  legal 
conditions.  The  natural  unity  between  the  theory  and  the 
practice  of  law  finds  its  expression  in  the  Roman  law,  and  the 
study  of  that  law  can  do  much  to  avoid  the  disastrous  divergence 
of  the  practical  and  the  theoretical.  But  to  make  the  Roman  law 
produce  this  result  we  must  turn,  not  to  summaries  or  general 
principles,  but  to  the  writings  of  the  Roman  jurists.  Such  a  study 
will  eliminate  from  law  subjective  and  arbitrary  aberrations,  and 
give  to  law  new  life  even  where  it  exists  in  the  form  of  a  Code. 
*'  This  is  markedly  shown  by  the  example  of  the  modern  French 
jurists  who,  often  in  a  very  judicious  manner,  illustrate  and 
complete  their  Code  from  the  Roman  law."  Even  in  the  case  of 
the  Prussian  Code,  if  there  could  be  at  least  a  partial  re-establish- 
ment of  "the  dissolved  connection  with  the  literature  of  the 
common  law,  the  result  now  could  be  nothing  but  the  arising  of 
a  beneficial  influence  upon  practice,  and  the  mischiefs,  so  sensibly 
felt  at  an  earlier  time,  would  certainly  not  recur."  The  effort 
to  employ  Roman  law  "  constantly  as  a  means  of  culture  for  our 
own  legal  condition  "  is  no  depreciation  of  "  our  time  and  our 
nation,"  for  in  view  of  the  enormous  accumulation  of  material 
we  have  a  greater  task  than  lay  before  the  Roman  jurists  and 
we  may  rightly  use  their  methods.  "  When  we  shall  have  been 
taught  to  handle  the  matter  of  the  law  presented  to  us  with  the 
same  freedom  and  mastery  as  astonishes  us  in  the  Romans,  then 
we  may  dispense  with  them  as  models  and  hand  them  over  to  the 
grateful  commemoration  of  history."  Till  then  we  must  use  a 
means  of  culture  that  we  are  incapable  at  present  of  creating. 

With  such  views  in  mind,  Savigny  proceeds  to  his  critical 
and  systematic  treatment  of  Roman  private  law  as  it  existed 
in  his  time.  He  searches  out  and  rules  out  all  that  is  dead  in 
Roman  law,  and  then  he  proceeds  to  demonstrate  the  great  and 
living  unity  of  what  remains.  "  In  the  richness  of  living  reality, 
all  jural  relations  form  a  systematic  whole."  His  business  is  to 
demonstrate  this  deep  and  fundamental  relationship,  which  is 
apt  to  disappear  when  particular  fields  of  law  are  momentarily 
in  view.  The  fact  of  this  relationship  causes  him  to  give  in  1839 
an  "  entirely  different  shape  "  to  the  doctrine  of  Possession  from 
that  presented  by  him  in  1803.  For  this  we  must  get  back  to 
the  old  jurists.  From  them  we  may  secure  "a  vitalizing  and 


684  FRIEDRICH    CARL   VON    SAVIGNY 

enriching  of  our  own  juristic  thought  obtainable  in  no  other 
way."  Savigny  says  that  the  work  he  here  performs  he  would 
have  performed  more  thoroughly  had  he  begun  it  in  his  earlier 
years.  He  would  have  checked  his  system  by  exegesis  beginning 
from  the  Glossators  and  on  through  the  French  school,  and  by 
practical  examples  also  derived  from  the  authors  of  the  numerous 
Consilia  responsa,  etc.,  also  beginning  from  the  Glossators.  In 
this  way  his  system  would  be  checked  in  detail,  and  he  suggests 
that  some  successors  of  his  might  undertake  this  work  and  give 
it  literary  completeness.  With  some  pathos  he  suggests  that  it 
might  be  done  piece  by  piece.  He  does  not  anticipate  the  coming 
of  giants,  of  Cujas  or  another.  So  he  gives  his  work  to  the  world. 
The  first  volume  deals  with  the  problem  before  him,  with  the 
nature  of  law  sources  in  general,  with  the  sources  of  the  modern 
Roman  law,  with  the  interpretation  of  written  laws.  The  second 
book  deals  entirely  with  jural  relations,  and  the  first  chapter 
treats  of  the  nature  and  kinds  of  the  jural  relations.  Up  to  this 
point  we  have  a  translation  by  Mr.  William  Holloway,  formerly 
a  judge  of  the  Madras  High  Court.  This  was  issued  at  Madras 
in  1807.  The  eighth  volume  of  the  work,  a  complete  treatise 
on  the  conflict  of  laws  and  private  international  law,  was  trans- 
lated by  Mr.  William  Guthrie  of  the  Scots  Bar  and  published 
in  1869  (2nd  ed.  1880)  by  Messrs.  Clark  of  Edinburgh.  In  1884 
Sir  William  (then  Mr.)  Rattigan  published  a  translation  of  the 
residue  of  the  second  book,  in  which  are  elaborately  discussed 
"persons  as  subjects  of  jural  relations."  This  translation 
exhibits  the  thoroughness  of  Savigny 's  investigations  and  his 
power  of  systematic  grouping  of  material.  For  the  purposes 
of  this  article  it  is  not  possible  or  desirable  to  discuss  the  details 
of  a  work  such  as  this,  with  its  close  investigation  into  the  facts 
and  doctrine  of  legal  capacity,  of  Capitis  Diminutio  and  juristical 
persons,  or  as  we  should  say  artificial  persons  (such  as  corpora- 
tions) possessing  jural  relations. 

The  pressure  of  public  judicial  and  diplomatic  work  had  long 
burdened  the  jurist.  Dr.  Reddie,  in  his  very  admirable  volume 
entitled  Historical  Notices  of  the  Roman  Law  and  of  the  Recent 
Progress  of  its  Study  in  Germany,  published  at  Edinburgh  in  1826, 
a  work  that  traces  in  valuable  detail, based  on  personal  knowledge, 
the  universal  activity  of  the  study  of  law  throughout  Central 
Europe  at  this  date,  says  of  Savigny  :  "  A  man  of  genius,  he  is 
not  only  a  celebrated  professor  and  judge,  but  a  profound  states- 


FRIEDEICH   CARL  VON   SAVIGNY  585 

man. . . .  Unfortunately  for  the  study  and  the  science  in  general, 
the  time  of  von  Savigny  is  too  much  occupied  with  the  discussion 
of  petty  disputes  in  a  kingdom,  the  attention  of  whose  govern- 
ment is  almost  entirely  directed  towards  military  affairs,  and 
where  his  labours,  however  highly  valued,  can  be  of  little  service 
to  mankind  at  large  "  (pp.  111-114).  It  is  certain  that  Savigny 
did  not  look  at  his  judicial  work  in  this  light.  He  was  descended 
from  a  family  of  soldiers,  diplomatists,  and  lawyers,  his  son  was 
an  eminent  diplomatist,  and  he  continually  dwells  on  the  need 
for  the  closest  touch  between  the  theory  and  the  practice  of  law. 
As  a  judge  he  certainly  gave  practical  law  something,  but  as  a 
jurist  there  can  be  little  doubt  that  he  gained  immense  power 
from  it.  It  kept  his  theory  of  law  alive,  and  made  the  jurist  feel 
in  the  most  vivid  sense  the  reality  and  the  personal  importance 
of  his  speculations.  So  important  did  he  regard  this  class  of 
work  that  in  1842  he  resigned  his  chair  at  the  University  of  Berlin 
and  became  the  Prussian  Minister  of  Justice,  a  post  which  he 
filled  with  rare  ability  until  the  year  1848,  when  the  wave  of 
revolution  passed  across  Europe.  In  that  year  he  retired  and 
set  to  work  to  revise  his  publications  and  papers.  Fortunately 
he  was  allowed  long  leisure  in  which  to  fulfil  this  important 
work  of  revision.  Many  of  his  papers  are  to  be  found  in  the 
Zeitschrift  fur  geschichtlichen  Rechtswissenschaft,  the  journal  for 
historical  jurisprudence  which  he  founded  with  the  help  of 
Eichhorn  and  Goschen  in  1815,  and  superintended  for  many 
years.1  Before  the  great  jurist  died  at  Berlin  on  October  25, 
1861,  in  his  eighty-third  year  (his  devoted  wife  his  helper  to  the 
last),  he  could  look  back  over  a  long  vista  of  accomplished  work, 
and  could  believe  that  the  future  of  his  beloved  science  was 
assured. 

It  is  not  possible  even  yet,  half  a  century  after  the  death  of 
Savigny,  to  indicate  fully  his  work  in  the  history  of  the  evolution 
of  law,  his  place  among  the  great  jurists  of  the  world.  The 
depository,  so  to  speak,  of  so  many  centuries  of  juristic  activity, 
the  forerunner  of  detailed  juristic  investigation  of  so  manifold 

1  In  October,  1850,  on  the  occasion  of  the  universal  congratulations  upon 
the  completion  of  the  fiftieth  year  of  his  doctorate,  he  issued  as  a  thank- 
offering  and  memorial  a  collection  of  all  the  detached  papers  he  had  written 
in  that  period.  The  volume  was  entitled  Vermischte  Schriften.  Tho  only 
omission  from  it  was  a  review  of  pluck's  Intestaterbfolge  which  appeared  in 
1804  in  the  Jenaische  Literaturzeitung.  (See  Law  Magazine  and  Review, 
May,  1863,  and  biographies  by  Riidorff  and  Bethmann-Kolhveg.) 


686 

a  character,  it  is  perhaps  as  easy  to  undervalue  as  to  overvalue 
his  services  to  a  science  that  mysteriously  superintends  the  health 
and  welfare  of 'the  social  world.  For  my  own  part  (but  I  write 
with  hesitation,  as  one  who  dares  not  claim  to  have  entered  in 
any  real  sense  into  even  a  minute  portion  of  the  fruits  of  his 
cheerfully  titanic  labours),  for  my  own  part  I  should  be  tempted 
to  call  him  the  Newton  or  the  Darwin  of  the  science  of  law.  His 
achievements  resemble  the  achievements  of  both  of  these  mighty 
men.  He  found,  as  Newton  found,  a  world  of  phenomena,  in 
his  case  of  juristic  phenomena,  and  he  wrestled  with  it  in  the  true 
hardihood  of  the  Renaissance  through  the  dark  night  until  the 
Spirit  of  the  Law  cried  out,  "  Let  me  go,  for  the  day  breaketh." 
It  was  reserved  for  Savigny  to  bring  the  daylight  of  the  Renais- 
sance to  the  science  of  law.  He  showed  us  that  law  itself  is  subject 
to  law,  that  it  is  no  arbitrary  expression  of  the  will  of  a  law-giver, 
but  is  itself  a  thing  obedient  to  a  cosmic  process.  To  show 
that  law  is  itself  the  expression  of  a  juristic  process  that  runs 
through  the  ages  was  in  itself  an  achievement  of  the  highest 
order ;  but  to  go  on  to  trace,  as  Savigny  traced,  what  we  may 
call  the  natural  history  of  law,  to  trace  its  organic  growth  as  a 
living  thing,  evolving  with  the  evolutions  of  races  and  kingdoms 
and  tongues,  was  a  still  greater  triumph.  When  we  think  of 
the  apparently  chaotic  mass  of  material  into  which  Savigny 
introduced  an  evolutionary  law,  or,  rather,  indicated  the  pro- 
cesses by  which,  operating  through  and  in  this  material,  juristic 
forces  adjusted  themselves  to  the  needs  of  successive  ages,  it  is 
difficult  to  resist  the  decision  that  he  stands  in  the  forefront  of 
European  thinkers.  It  is  true  that  his  guiding  star  in  his  investi- 
gations and  reductions  was  the  Roman  law,  but  he  himself  fully 
realized  the  importance  of  other  systems  of  law,  the  common 
laws  of  general  and  particular  customs  of  European  nations,  in 
arriving  at  general  results.  But  while  individual  nations  had 
their  respective  systems  of  common  law,  it  must  be  remembered 
that,  down  to  the  Renaissance  at  any  rate,  Roman  law  was  the 
common  law  of  all  Europe,  a  general  system  of  law  upon  which 
local  systems  were  more  or  less  successfully  grafted.  To  trace 
the  natural  history  of  Roman  law  in  Europe  was  the  only  possible 
method  of  arriving  at  the  secret  that  underlay  the  whole  evolution 
of  law.  When  once  the  secret  was  disclosed,  then  it  was  time 
enough  for  Savigny  himself  and  his  successors  to  retrace  the 
ground,  to  reinvestigate  sources,  to  turn  the  newly  discovered 


FEIEDEICH   CAUL   VON   SAVIGNY  587 

processes  on  those  sources,  and  so  to  bring  into  the  field  of  juristic 
science  material  of  every  kind  that,  until  then,  had  seemed 
beyond  the  control  or  operation  of  any  general  law  of  evolution. 
There  is  no  need  to  claim  too  much  for  Savigny.    As  we  have 
seen,  he  was  not  the  inventor  of  the  historic  method,  nor  can 
he  claim  to  have  carried  that  method  to  its  scientific  height. 
Newton  and  Darwin  entered  into  the  ideas  and  labours  of  their 
predecessors,  and  their  supreme  conceptions  have  certainly  been 
applied  with  a  thoroughness  that  would  possibly  have  astonished 
the  masters  themselves.     So  it  was  and  has  been  with  Savigny. 
Of  his  forerunners  we  have  seen  something ;  and  even  while  he 
was  toiling,  Semester  by  Semester,  in  the  congenial  work  of  teach- 
ing and  judging  at  Berlin,  his  fellow-workers  and  pupils  were 
applying  his  methods  and  were  methodizing  material  to  his  hand. 
And  his  and  their  successors  in  Germany  and  England  and  France 
have  gone  far.    His  friend  Niebuhr  in  1816  discovered  in  the 
chapter  library  at  Verona  the  priceless  palimpsest  manuscript 
of  the  Institutes  of  Gams,  the  work  on  which  the  Institutes  of 
Justinian  were  based.    In  1820  Savigny 's  pupil  Goschen  pub- 
lished the  first  edition  of  this  manuscript.    Another  pupil,  Blume, 
obtained  some  further  readings  from  this  almost  indecipherable 
palimpsest  in    1822-3,   and  these  were  included  in   Goschen's 
second  edition  of  1824.    The  study  of  this  manuscript  has  gone 
on   until  quite  recently.     Dr.   Roby  tells  us  that    "Wilhelm 
Studemund  in  1866-68  made  a  fresh  copy  of  the  MS.,  containing 
much  that  had  not  been  previously  read,  and  he  published  a 
kind  of.  facsimile  in  1874,  and  in  conjunction  with  Paul  Kriiger 
a  very  careful  and  convenient  edition  in  1877.     In  1878  and 
1883  Studemund  re-examined  the  MS.,  and  thus  obtained  addi- 
tions and  corrections  of  some  importance,  which  were  published 
in  subsequent  editions  of  his  and  P.  Kriiger's  book."     Here, 
then,  was  one  line  of  investigation  worked  out  that  must  have 
been  after  the  very  heart  of  the  master.    Another  investigation, 
of  perhaps  even  greater  importance  from  the  point  of  view  of 
the  history  of  evolution  of  law,  has  been  the  work,  one  might 
almost  say  the  life-work,  of  that  eminent  English  scholar  Dr.  H.  J. 
Roby  in  reconstructing,  with  an  infinitude  of  labour  that  recalls 
the  toil  of  Cujas  and  of  Savigny,  Roman  Private  Law  as  it  existed 
in  the  times  of  Cicero  and  of  the  Antonines.    It  is  a  marvellous 
piece  of  work,  and  gives  us  substantially,  if  not  actually  clear  of 
"  Byzantine  modifications,"  Roman  Private  Law  as  it  stood  at 


588  FEIEDEICH    CARL   VON    SAVIGNY 

the  time  of  its  highest  development  (say  A.D.  161  to  228).  Savigny 
would  have  been  the  first  to  recognize  the  supreme  importance 
of  establishing  this  basis  from  which  to  trace  the  long  centuries 
of  modification,  down  even  to  the  law  of  Holland  or  Scotland, 
Ceylon,  Egypt  or  the  Cape  to-day  ;  and  he,  too,  would  have 
been  glad  to  know  of  the  substantial  assistance  afforded  to  Dr. 
Roby  by  German  scholars,  and  probably  would  have  enjoyed 
some  of  Dr.  Roby's  not  unkindly  criticism  of  certain  modern 
German  critical  methods.  Beside  Roby's  work  must  be  placed 
the  tireless  labours  of  the  immortal  Mommsen  and  his  school  in 
unravelling  the  texts  of  "  law-books,  authors,  and  inscriptions." 
No  doubt  vast  fields  he  open  for  future  scholars  in  the  period 
behind  the  Antonines,  though  much  work  has  already  been  done 
in  those  dark  ages.  And,  again,  the  field  of  Roman  law  in  the 
Middle  Ages  calls  for  workers.  Maitland's  brilliant  treatment 
of  Bracton  shows  how  much  remains  to  be  done  to  bring  into 
cultivation  the  immense  field  over  which  Savigny  cast  his 
measuring-rod.  This  is  not  the  place  in  which  even  to  indicate 
the  area  of  work,  or  to  mention  the  work  now  hi  progress.  But 
that  work  and  the  appreciation  of  its  intensity  and  its  range  by 
great  modern  scholars  show  how  thorough  and  how  sound  were 
the  principles  that  Savigny  laid  down.  His  actual  work  was 
titanic,  but  it  is  plain  enough  (now  that  he  has  given  us  the 
guiding  principle)  that  he  but  threw  open  an  almost  illimitable 
domain  of  investigation.  As  it  was  with  Newton  and  Darwin, 
so  was  it  with  Savigny. 

Sometimes  it  has  caused  wonder  that  a  man  of  such  vast 
intellectual  powers  should  have  devoted  to  law,  and  Roman  law, 
gifts  that  might  have  seemed  intended  for  mankind  ;  for  mankind, 
that  is,  in  some  practical  and  immediate  way.  The  answer, 
however,  is  surely  not  far  to  seek.  Man  cannot  live  by  bread 
alone  ;  and  even  breadwinners  cast  their  bread  upon  the  waters 
that  it  may  return  after  many  days.  A  lawyer,  even  a  jurist, 
does  not  appeal  to  the  popular  mind.  To  be  a  Napoleon  does 
so  appeal.  Yet  probably  Napoleon's  greatest  work  was  one  that 
brought  Savigny,  so  far  as  intellect  clashes  with  intellect,  into 
direct  conflict  with  the  victor  of  Jena.  The  Code  Napoleon 
was  attacked  by  Savigny  with  a  vigour,  a  swiftness,  and  a  certi- 
tude worthy  of  the  great  captain  himself.  And  Savigny's 
pungent  criticism  stands  to  this  day.  In  so  far  as  Napoleon's 
Code  has  survivedand  permeated  Europe  it  has  tended  to  diminish 


FRIEDRICH   CARL  VON   SAVIGNY  589 

the  efficiency  of  law  as  a  thing  that  grows  with  a  people's  growth 
and  reacts  on  their  efficiency.  Napoleon's  successful  enemy, 
England,  strenuously  maintained  that  identical  system  of  legal 
development  advocated  by  Savigny,  with  the  result  that  we  are 
approaching  an  age  when  codification  slowly  becomes  possible 
in  the  sense  anticipated  by  the  jurist  of  Berlin.  This  illustration 
of  the  relation  of  a  jurist  to  daily  life  is  not  without  its  value. 
The  jurist  is  greater  than  the  legislator.  His  function  is  so  to 
lay  down  general  laws  of  juridical  development  that  nations  in 
the  course  of  remedial  legislation  may  have  a  guide  which  will 
show  them  how  to  adapt  that  legislation  to  the  needs  of  the 
people ;  how  to  evolve  it  from  a  living  legal  system  ;  and  how 
to  make  it  stage  by  stage  an  expression  of  the  life  of  the  people, 
and  at  the  same  time  a  guiding  force  that  will  lead  not  only 
individual  peoples  but  all  nations  to  adopt  ever  higher  standards 
of  conduct,  ever  closer  and  closer  approximations  to  the  divine 
laws  of  righteousness  and  equity  that  stand  like  Platonic  patterns 
towards  which  the  nations  turn  their  eyes.  If  this  is  the  function 
of  the  jurist,  then  he  stands  among  the  great  benefactors  of  the 
world,  and  few  will  doubt  that  Savigny,  whose  soul  was  a  very 
pattern  of  clarity  and  charity,  will  remain  a  bright  particular 
star  as  we  move  farther  away  from  the  great  nineteenth  century 
and  watch  through  Time's  impartial  glass  the  fixed  stars  that 
brood  over  it  and  by  which  we  guide  our  fate.  The  motto  of 
Savigny's  family,  Non  mihi,  sed  aliis,  had  had  a  real  meaning 
in  the  lives  of  his  ancestors.  In  the  case  of  Savigny  himself 
the  words  reveal  his  character,  his  ideals  and  his  daily  task. 
One  of  the  very  greatest  of  the  jurists,  he  saw  underlying  all  law 
the  law  of  love. 


RUDOLPH  VON  IHERING 

RUDOLPH  VON  IHERING  has  often  been  described  as  the  last  of 
the  Romanists.  Misleading  in  some  respects,  this  epithet  has 
much  truth  in  it.  His  works  were  so  much  concerned  with 
Roman  law,1  he  propounded  so  many  new  ideas  as  to  it, 
gave  so  many  answers  of  his  own  to  problems  in  Roman  law, 
that  I  wish  that  the  task  of  describing  his  labours  and  estimating 
their  value  had  fallen  to  one  more  conversant  than  I  am  with  his 
special  subject. 

In  reading  his  books,  I  have  felt  again  and  again  the  need  of 
that  close  acquaintance  with  the  civil  law  which  comes  only  with 
long  study.  All  that  I  can  do  is  to  state  certain  facts  as  to  his 
life  and  a  few  general  conclusions  formed  in  studying  with  some 
care  Ihering's  writings. 

There  is  little  to  be  said  about  the  events  of  his  life  ;  they  were 
few  and  simple.  His  was  the  ordinary  life  of  German  professors 
in  days  when  they  were  not  politicians,  and  the  pursuit  of  science 
was  an  end  in  itself.  Ihering  was  born  August  22,  1 8 1 8,  at  Aurich 
in  East  Friesland.  He  was  the  son  of  a  lawyer,  and  came  of  a 
legal  stock.  He  was  educated  at  Heidelberg,  Munich,  Gottingen, 
and  Berlin.  In  1843  he  became  a  Privatdocent  at  Berlin,  the  sub- 
ject upon  which  he  lectured  being  Roman  law.  In  1845  he  was 
called  to  Basle,  in  1846  to  Rostock,  in  1849  to  Kiel,  and  in  1852 
to  Giessen,  where  he  spent  some  sixteen  years  of  fruitful  activity. 
He  was  called  in  1868  to  Vienna  in  circumstances  honourable  to 
him.  It  was  characteristic  of  the  man  that  he  left  Vienna,  with 
its  gaieties  and  distractions,  to  return  to  the  quiet  of  Gottingen 
in  1872,  and  there  he  remained,  declining  to  accept  invitations 
to  go  to  Leipsic  and  Heidelberg.  At  Gottingen  he  was  very  suc- 
cessful as  a  teacher.  His  classes  were  large.  As  a  lecturer  he  had 
rare  gifts.  His  own  enthusiasm  for  law  he  communicated  to 
others. 

1  Puchta  died  in  1846;  Bruns,  in  1880  ;  Windscheid,  in  1892. 
590 


RUDOLPH   VON    IHERING 


IHERING  591 

He  once  stood  as  a  candidate  for  the  North  German  Parlia- 
ment, but  was  not  elected.  He  spent  the  rest  of  his  days  at 
Gottingen,  leading  the  life  of  a  scholar,  but  not  of  a  recluse.  He 
was  an  excellent  musician,  a  true  lover  of  art,  an  enthusiastic 
gardener.  He  was  a  shrewd  judge  of  men,  as  well  as  of  the  best 
way  of  laying  down  wine.  An  ardent  admirer — one  might  even 
say  an  idolater — of  Bismarck,  he  watched  with  interest  and  de- 
light the  unification  of  Germany.  He  was  of  fiery  and  energetic 
temperament,  enjoying  life,  decided  in  his  gestures  and  de- 
meanour and  expressions,  and  in  defence  of  what  he  believed  right 
passionate  and  combative. 

Strongly  convinced  of  the  need  of  making  jurisprudence  prac- 
tical, he  himself  had  little  experience  of  the  work  of  a  lawyer. 
But  when  Professor  at  Basle,  he  was  in  close  contact  with 
practising  lawyers  and  judges,  and  he  was  consulted  upon 
important  matters.  He  had  an  attractive  personality.  His  in- 
fluence on  men  was  great.  One  characteristic  must  be  mentioned 
at  the  outset.  In  all  he  did,  or  said,  or  wrote,  there  was  vitality. 
He  wrote  much  about  the  past,  but  not  a  page  is  dead  matter.1 
One  of  his  pupils  and  admirers — and  all  his  pupils  were  admirers 
— says  of  him  :  "  He  lives  and  thinks  in  the  present,  and  with 
the  present  and  his  surroundings.  His  intellectual  character  has 
the  features  of  his  own  time  as  had  none  of  his  contemporaries  or 
scarcely  anyone  since  Ulpian  and  Papinian."  The  same  writer 
adds  :  "  Er  ist  der  Jurist  seines  Jahrhunderts  und  der  Zukunft." 
The  man  and  his  works,  as  his  friend  Merkel  remarks,  were  of  a 
piece.2 

He  has  been  called  the  last  of  the  Romanists,  but  Roman 
law  was  to  him  a  means  to  an  end.  His  motto  was  "  Through 
Roman  law,  but  above  and  beyond  it."  He  insisted  that 
there  was  no  understanding  law  in  the  past  without  compre- 
hending the  present.3  In  his  eagerness  to  vivify  dead  matter 
he  often,  it  seems  to  me,  found  more  in  Roman  law  than 

1  "  Sie  lehrten  das  Recht  als  die  aus  praktischen  Zweckgedanken  geborene 
Lebensordnung  betrachten,  welche  dem  Ideal  der  Gerechtigkeit  nach  dem 
Masse  der  Einsicht  und  Kraft  jedes  Volkes  und  jeder  Zeit  zustrebt,  zugleich 
aber  als  das  feine  Kunstwerk,  welches  durch  Formenschonheit  und  sinnvolles 
Ineinandergreifen  der  Theile  anzieht  "  (Preface  to  Kielcr  Festgabe). 

2  In  his  preface  to  the  Jahrbucher  (Gesammelte  Aufsatze,  1.26)  he  says: 
"  Die  Aufgabe  der  Gegenwart  gegeniiber  dem  romischen  Recht  besteht  aber 
nicht  bloss  im  construiren,  wovon  bisher  allein  die  Rede  war,  spndern  im 
destruiren."     Matters  which  have  outlived  their  day  can  have  no  significance 
for  us. 

3  Scherz  und  Ernst,  fourth  edition,  p.  365. 


592  IHERLNG 

was  there.1  In  many  pages  he  appears  to  be  pouring  new 
wine  into  old  bottles. 

His  influence  was  great — great  as  a  teacher,  still  greater 
through  his  writings,  which  had  a  circulation  larger  than  that 
of  any  other  German  author  writing  upon  law.  He  was  endowed 
with  a  charm  of  style  rarely  possessed  by  lawyers.  It  has 
vivacity  and  dramatic  qualities,  though,  let  me  add,  it  is  rhetorical 
and  diffuse,  and  he  carries  to  excess  the  orator's  proclivity  to 
repetition.  Gifted  with  great  energy  and  force  of  character, 
he  has  exercised  a  profound  influence  in  the  face  of  much  opposi- 
tion from  jurists  of  his  own  country.  He  was  a  scholar  and  a 
jurist ;  but  he  aspired  also  to  be  a  philosopher,  and  he  is  best 
known  in  this  country  by  his  works  which  deal  with  some  of  the 
fundamental  questions  of  jurisprudence — for  example,  by  his 
Kampf  urns  Recht.  He  was  not  an  historian  in  one  sense  of  the 
term — that  is,  he  was  not  a  systematic  investigator  of  the  facts 
of  any  one  period.  He  does  not  conform  to  the  canons  which  a 
modern  historian  as  a  rule  observes.  "  The  real  interest  of  the 
present  counts  with  me  much  more  than  the  investigation  of 
the  past  "  ;  the  mood  of  the  reformer  rather  than  that  of  the 
unbiassed  student  of  remote  times.  He  is  ingenious  and  pro- 
lific in  brilliant  conjectures  ;  but  he  is  also  fantastic,  putting 
little  restraint  on  his  ingenuity.  Writing  much  and  swiftly,  he 
naturally  fell  into  errors  of  which  his  critics  made  the  most.  For 
example,  he  ascribed  to  Antoninus  Pius  a  rescript  of  Caracalla. 
But  he  had  rare  gifts  of  insight,  and  divination  exemplified  in  all 
his  works,  and  not  least  in  his  Schuldmoment  im  romischen  Recht, 
in  which  he  seeks  to  show  that  criminal  law  is  the  kernel  of  law, 
and  that  the  history  of  law  shows  the  continuous  Verdrangung  or 
expulsion  of  criminal  law.  Jurist,  historian,  ethnologist,  philo- 
sopher— perhaps  I  ought  to  add  humorist — he  had  a  singularhr 
wide  range  of  interests  and  activity. 

The  following  are  some  of  his  chief  works  : 

1842.  Dissertatio  de  hereditate  possidenda. 

1844.  Abhandlungen  aus  dem  romischzn  Rechts. 

1847.  Civilrechisfalle  ohm  Entschzidungen. 

1857.  Jahrbucher  fur  die  dogmatik  des  hsutigen  romischen  und 
deutschen  Privatrechts — a  publication  which  he  founded  and 
edited,  and  to  which  he  contributed  much. 

1852-1858.  Geist  des  romischzn  Rechts. — This  is  probably  the 
most  valuable  and  original  of  his  works.  It  abounds  in  esprit. 
1  See  Scherz  und  Ernst,  p.  108. 


IHERING  693 

It  is  written  with  immense  knowledge.  It  is  full  of  original  ideas. 
It  vivifies  the  whole  subject.  I  know  no  book  upon  jurisprudence 
more  stimulating  or  suggestive.  It  was  not  well  received  by  the 
majority  of  professors  of  Roman  law,  who  thought  it  was  much 
too  daring  and  fantastic.1  In  a  letter  to  a  friend  he  says  :  "  It 
is  now  more  than  clear  to  me  that  the  book  finds  no  favour  with 
all  or  most  people  who  have  got  a  position." 

The  book  appeared  almost  contemporaneously  with  Maine's 
Ancient  Law,  and  it  does  not  suffer  from  the  comparison.  But  it  is 
diffuse  ;  there  is  much  repetition  ;  there  is  no  clear  order  of  exposi- 
tion. There  are  many  incursions  into  subjects  somewhat  remote 
from  law.  Thus,  in  the  second  book,  title  2,  s.  39,  Ihering  treats 
of  the  participation  of  the  State  in  the  property  of  the  individual 
and  the  social  effects  of  slavery.  He  writes  often  in  the  spirit  of 
the  advocate.  One  side  is  presented  with  vividness  and  even 
passion  ;  the  other  is  almost  ignored.  I  might  refer  as  an  example 
to  his  eulogy  of  the  Roman  family  and  the  working  of  the  patria 
potestas,  and  his  blindness  to  its  defects.  With  all  its  imper- 
fections, this  is  a  singularly  original  work.  The  second  book, 
title  3,  dealing  with  jus  strictum  and  the  formalism  of  ancient 
law,  is  a  storehouse  of  new  ideas.  So,  too,  are  the  remarks  on 
fictions  and  their  use. 

1867.  Das  SchuMmwnent  im  romischen  Privatrecht. — A  singu- 
larly brilliant  study,  which  brings  out  the  fact  that  the  history 
of  punishment  is  one  of  gradual  decay,  and  that  progress  con- 
sists in  a  restriction  of  its  province.    The  two  main  results  of 
the  author's  investigations  are — first,  as  to  the  power  of  ideas 
silently  to  affect,  mould,  and  re  vivify  law  ;  secondly,  displacement 
of  punishment  as  an  element  in  law — "  wenn  die  Idee  des  Rechts 
wachst  sterben  die  Strafen  ab,  der  Aufwand  von  Strafmitteln 
steht  im  ungekehrten  Verhaltniss  zu  der  Vollkommenheit  der 
Rechtsordnung  und  der  Reife  der  Volker  "  (p.  67). 2 

1868.  Ueber  den  Grund  des  Besitzesschutzes. 

1870.  Die  Jurisprudenz  des  tdglichen  Lebens. — A  collection  of 

1  "  Ueberfluss  an  Phantasie,"  "  Mangel  an  Methode,"  were  some  of  the 
criticisms  of  his  contemporaries. 

2  "  Die  Geschichte  der  Strafe  ist  ein  f  ortwahrendes  Absterben  derselben. 
Der  Anfang  des  Rechts  ist  die  Uebermacht  des  Strafbegriffs,  dasStrafelement 
durchdringt  das  ganze  Recht,  alle  Verhaltnisse  desselben  sind  mit  ihm  mehr 
oder  weniger  versetzt  ;  der  Fortschrift  des  Rechts  besteht  in  einer  fortgesetz- 
ten  Einengang  des  Gebiets  und  einer  fortgesetzten  Reinigung  des  Bcariffs  der 
Strafe  "  (p.  4).     It  is  a  short  history  of  the  principle  "  Ohne  Schuld  keine 
Verantwortlichkeit "  (p.  20). 

O\' 


594  IHEKING 

questions  or  cases  for  discussion,  which  has  been  translated  into 
English  by  Professor  Goudy. 

1872.  Kampf  urns  Recht. — To  many  Ihering  is  known  only  by 
this  brochure — a  work  which  has  been  translated  into  several 
languages,  and  has  passed  through  many  editions.  It  seeks  to 
prove  that  it  is  the  duty  of  the  citizen  to  assert  his  rights,  and 
that  law  triumphs  by  such  assertion.1  In  fighting  for  his  rights, 
every  man  is  a  champion  of  the  law  in  the  interests  of  society. 
This  clever  pamphlet  is  an  exaggeration — and,  as  such,  charac- 
teristic of  the  author — of  one  side  of  morality  and  law.  It  can- 
not be  regarded  as  a  scientific  study  of  great  value. 

1877-1883.  Der  Zweck  im  Recht. — This  is  the  most  ambitious 
of  Ihering 's  works — the  one  by  which  he  would  have  desired  to 
be  judged — and  intended  by  him  to  embody  the  substance  of  his 
teaching.  He  had  closed  his  Geist  des  romischen  Rechts  by  a 
refutation  of  the  Hegelian  doctrine  that  the  essence  of  law  was 
the  expression  of  the  general  will.  Utility,  not  will,  was  its 
essence.  Ulpian  had  said  as  much:  "Jus  privatum  quod  ad 
singulorum  utilitatem  spectat."  In  other  words,  rights  are 
interests  judicially  protected — an  idea  which  Ihering  proceeds  to 
develop.  It  is  impossible  to  describe  adequately  the  varied  con- 
tents of  the  two  volumes,  which,  full  of  ideas,  have  the  defect  of 
all  Ihering 's  works — great  diffuseness — and  which  range  over 
many  subjects  akin  to,  but  outside,  law.  The  motto  of  the  book 
— "  the  telos  or  purpose  is  the  creator  of  all  law  " — indicates  the 
main  argument  of  the  book.2  At  the  outset  he  draws  a  distinc- 
tion between  cause  (causa  efficiens,  Ursache)  operating  in  the 
physical  world  and  object  or  purpose  (causa  finalis,  Zweck) 
operating  on  the  will.  In  the  former  there  is  no  action  without 
a  cause  (Ursache) ;  in  the  latter  no  Wotten,  or,  what  is  the  same, 
no  act  without  a  purpose  (Zweck)  (i.  5)  ;  or,  as  he  expresses  it, 
conduct  is  determined  not  by  a  "because,"  but  by  a  "for." 
Without  a  purpose  the  will  does  not  act.  Then  come  a  study  of 
human  aims  or  motives  (Systematik  der  menschlichen  Zwecke), 
which  fall  into  two  great  groups — the  individual  and  the 
social  (die  des  Individuums  und  die  der  Gemeinschaft).  The 
egoistic  motives  for  social  action  are  two — reward  (Lcihri)  in 
its  large  sense  and  force  (Zwang).  The  social  motives  are 

1  "  Das  Ziel  des  Rechts  ist  der  Friede,  das  Mittel  dazu,  der  Kampf."     "  Das 
Leben  des  Rechts  ist  Kampf,  ein  Kampf  der  Volker,  der  Staatwalt,  der  Stande, 
der  Individuen."     "  In  Kampfe  sollst  Du  dein  Recht  finden." 
"  Der  Zweck  ist  der  Schopfer  des  ganzen  Rechts." 


IHEEING  595 

two  also — the  sense  of  duty  and  love.  Each  of  these  motives 
is  analyzed.  For  example,  in  c.  5  is  an  analysis  of  the 
different  forms  of  force  (Ztvang).  What  is  the  object  of  law  ? 
Ihering's  answer  is  not  unlike  that  of  Austin  ;  its  essence  is  force. 
"Ich  das  Recht  inhaltlich  definire  als  die  Form  der  durch  die 
Zwangsgewalt  des  Staates  beschafften  Sicherung  des  Lebens- 
bedingungen  der  Gesellschaft."  In  other  words,  law  is  the 
securing  by  the  State  of  the  essential  conditions  of  soci.ty. 
The  means  of  attaining  such  conditions  are  extra-legal  (ausserer 
rechtliche),  the  mixed  legal  (gemischtrechtliche),  and  the  purely 
legal.  The  necessary  conditions  are  the  preservation  of  life,  its 
continuance,  work,  and  intercourse  of  mankind1  (i.  453). 

The  second  volume  deals  with  morals,  including  teleology 
(ii.  135)  and  the  theory  of  morals  (ii.  243).  The  last  chapters 
are  devoted  to  a  study  of  courtesy  or  Hoflichkeit  (ii.  480) — chap- 
ters rich  in  acute  observations  respecting  manners,  dress,  sym- 
bolism, and  speech.  As  illustrative  of  the  wide  range  of  the 
inquiry,  it  may  be  mentioned  that  the  last  chapter  deals  with  the 
syntax  of  Hoftichkeit  (i.  701) — for  example,  the  use  of  "thou  " 
and  "  du  " — and  is  full  of  discriminating  and  original  observa- 
tions. In  the  field  of  philosophy  Ihering  was,  as  hev  admits, 
somewhat  of  a  dilettante.  Contrasting  his  exposition  with  those 
of  the  best  writers  on  psychology  who  treat  of  the  will,  one  sees 
the  imperfections  of  Ihering's  analysis.2  He  greatly  exaggerates 
the  part  of  the  conscious  causes  of  action.  He  forgets  the  large 
part  which  is  determined  by  accumulated  energy,  or  by  the  blind 
natural  impulses,  such  as  sexual  love,  fear  of  death,  etc.3  For 
Ihering,  law  is  the  protection  by  force  of  "interests."  It  is  left 
somewhat  uncertain  what  are  "interests"  or  what  species  of 
"interests"  are  protected.  Obviously,  some  "interests,"  and 
among  those  some  of  the  most  important — e.g.,  scientific  truth — 
are  not  so  protected. 

1 879.  Vermischte  Schriften  juristischen  Irihalts. 

1881.  Oesammelte  Aufsatze. — The  three  volumes,  consisting  of 
reproductions  of  Ihering's  articles  in  the  Jahrbiicher  des  heutigen 
und  romischen  und  deutschen  Privatrechts,4  contain  an  interesting 
preface  to  the  periodical  in  which  he  pleads  for  "a  receptive 

1  "  Selbsterhaltungstrieb,   Geschlechtstrieb,   Erwerbstrieb,   sind   die    drei 
machtigen  Bundesgonessen  der  Gesellschaft,"  etc.  (i.  453). 

2  E.g.,  Bain's  Emotions  and  the  Will,  fourth  edition,  p.  333  et  seq. 

3  See  Wundt,  Philosophische  Studies,  vi.  585 ;  also  Wundt,  Logik,  iii.  588  u 

4  A  periodical  which  he  and  Von  Gerber  started  in  1857. 


596  IHERENG 

and  productive  jurisprudence,"  and  in  which  he  distinguishes 
between  higher  and  lower  jurisprudence,  the  former  concerned 
with  legal  conceptions  instead  of  legal  rules,  the  latter  construc- 
tive as  well  as  critical.  "  Die  hohere  Jurizprudenz  ist  nicht  bloss 
Bildnerin  des  Stoffs,  sondern  auch  Schopferin  "  (i.  12).  The 
collection  also  includes  articles  on  risk  in  sale  contracts  ("  Gefahr 
beim  Kaufcontract  "),  "culpa  in  contrahendo  oder  Schadenersatz 
bei  nichtigen  oder  nicht  zur  Perfection  gelangten  Vertragen,"  the 
limitation  on  property  in  land  in  the  interest  of  adjoining  pro- 
prietors ("zur  Lehre  von  den  Beschrankungen  des  Grundeigen- 
thiimers  in  Interesse  der  Nachbarn  "). 

Das  Trinkgeld  is  a  juridical  and  economic  study  of  what  Ihering 
describes  as  a  form  of  begging — "  eine  durch  die  Sitte  organisirte 
Art  des  Bettelei  "  (p.  50) — a  habit  which  everyone  who  has  at 
heart  the  public  welfare  should  do  his  best  to  stop  (p.  52). 

1885.  Scherz  und  Ernst  in  der  Jurisprudenz. — A  collection  of 
essays  and  articles,  or,  according  to  the  subtitle,  "  Confidential 
Letters  upon  Jurisprudence  of  the  Day  by  an  Unknown."  Iher- 
ing's  conception  of  humour  may  not  be  to  the  taste  of  all,  but 
the  letters  are  full  of  excellent  sense.  They  enforce  with  emphasis 
and  ingenuity  the  need  of  close  relation  between  law  and  practice 
and  of  improvements  in  legal  education.  The  chapter  entitled 
"  Im  juristischen  Begriffshimmel :  Ein  Phantasiebild,"  is  a  satire 
or  humorous  sketch  which  Jean  Paul  Richter  might  have  penned. 

1889.  Der  Besitzwille,  or  Possessory  Intention. — One  of  the  many 
contributions  to  a  controversy  which  has  engaged  German  jurists 
from  the  tune  of  Niebuhr  and  Savigny,  and  later  Bruno,  Pernice, 
Kuntze,  and  many  others. 

Ihering  published  in  1868  in  the  Jahrbucher  fur  Dogmatik 
an  article,  "Ueber  den  Grund  des  Besitzschutzes."  In  1889 
appeared  his  mature  work,  Der  Besitzwitte,  zugleich  eine  Kritik 
der  herrschenden  juristischen  Methode.  It  was  one  of  the  many 
attempts  to  find  unity  in  the  rules  of  Roman  law  on  the 
subject  and  an  explanation  of  the  difference  between  possessio 
and  detentio ;  of  the  fact  that  possession,  as  distinguished  from 
property,  was  protected  by  actions.  The  Roman  jurists  had 
said :  "  Any  kind  of  possessor,  by  the  very  fact  that  he  is 
possessor,  has  more  right  than  one  who  does  not  possess." 
Why  is  this  ?  Why  is  protection  given  not  only  in  the  case  of 
the  owner,  but  also  of  one  who  is  not  so,  and  who  knows  he 
is  not  so  ?  A  generally  accepted  answer  was  that  of  Savigny : 


IHEETNO  597 

the  possession  which  is  protected  depends  on  the  animus  domini. 
The  violation  of  possession  is  a  violation  of  the  person.  For 
Ihering  possession  is  the  outwork  of  the  fortress  of  property. 
In  his  later  (1889)  treatment  of  the  subject,  Ihering  combats 
the  "  will  theory  "  of  possession  in  its  many  forms.  He  set  up 
an  objective  theory,  and  he  concludes  that  possession  is  not  a 
mere  fact,  but  a  species  of  right.1  Of  Ihering 's  treatment  of  this 
subject  it  may  at  least  be  said  that  he  recognizes  more  clearly 
than  most  writers  the  historical  and,  so  to  speak,  accidental 
elements  and  origin  of  some  of  the  distinctions  hi  Roman  law 
between  those  who  had  and  those  who  had  not  possessory 
remedies  ;2  that  the  subject  was  not  discussed  in  a  purely  abstract 
fashion  ;  and  that  he  had  always  in  view  the  practical  effect  of 
the  rules  which  he  discusses.  He  did  not  attempt  to  devise  a 
"  Monstrum  Begriff "  (to  quote  Feuerbach's  phrase)  which 
would  fit  all  uses  of  the  term  possession. 

1894.  His  posthumous  works,  Vorgeschichte  der  Indo-Europaer 
und  Entwickdungsgeschichte  des  romischen  Rechts. — His  Vorge- 
schichte der  Indo-Europtter  grew  out  of  a  plan  for  the  history  of 
the  development  of  Roman  law.  The  first  book  was  to  deal  with 
the  early  tunes,  which  led  him  to  a  consideration  of  the  condition 
of  the  early  Aryan  people  and  their  law.  "  My  profession — that 
of  Roman  law — caused  me  to  study  the  ancient  history  of  the 
European  nations.  I  desired  to  discover  clearly  how  the  Romans 
treated  their  legal  institutions,  which  they  had  derived  from  the 
original  nation — what  they  kept  and  what  they  altered  .  .  .  "; 
and  so,  with  the  aid  of  philology,  he  endeavoured  to  spell  out 
the  laws,  customs,  and  organization  of  the  primitive  people,  the 
ancestors  of  the  Indo-Europeans.  The  Entwickdungsgeschichte 
was  unfinished.  The  draft  of  his  work,  edited  by  Ehrenberg, 
contains  an  introduction  as  to  the  task  and  method  of  legal  his- 
tory, together  with  an  unfinished  part  relating  to  the  Roman 
family.  The  Einleitung  also  contains  a  strong  protest  against 
the  theory  of  the  unconscious  growth  of  law  (p.  14)  as  "reines 
Phantasiegebilde  "  (p.  27). 

To  understand  Ihering's  teaching,  we  must  know  his  time  and 
the  circumstances  in  which  he  wrote.  He  came  after  the  influ- 

1  For  a  clear  accountof  the  various  theories,  see  Girard's  Manuel  Elemen- 
taire  de  Droit  Romain,  3rd  ed.,  p.  266. 

3  The  theory  of  the  canon  law  as  to  possession  was  different  from  that  of 
the  Roman  law.  See  Pollock  and  Maitland,  II.  41,  and  as  to  modern  treat- 
ment  of  the  subject,  the  Suriss  Civil  Code,  Articles  919  to  941. 


598  IHERING 

ence  of  Hegelianism  upon  law  had  reached  its  height,  and  at  the 
close  of  a  period  when  (to  quote  his  own  words)  everyone  who 
dared  to  question  Hegel's  decrees  was  looked  down  upon  with 
supreme  contempt.  He  desired  to  lay  a  philosophical  basis  for 
jurisprudence  ;  he  found  it  neither  in  Hegel  nor  in  Krause.  The 
purely  speculative  works  on  law  were  repugnant  to  him,  and  he 
covered  them  with  ridicule.1  Ihering  followed  a  succession  of 
eminent  jurists.  Puchta,  his  teacher,  had  died  in  1 846.  Savigny, 
who  influenced  him  profoundly,  lived  on  until  1861 ;  but  his  work 
had  been  completed  long  before.  In  some  respects  a  continuer  of 
Savigny,  he  was  also  in  others  an  opponent.  He  always  spoke 
with  admiration  of  Savigny 's  services  to  jurisprudence,  not  so 
much  on  account  of  his  historical  researches  as  by  reason  of  his 
reaction  against  the  conception  of  a  "  natural  "  immutable  law 
and  of  his  having  drawn  together  science  and  life  (Annaherung  der 
Wissenschaft  und  des  Lebens).  Ihering  parted  company  with  the 
historical  school  at  many  points.  It  tended  to  beget  a  kind  of 
fatalism,  to  estrange  law  from  present  life,  to  exaggerate  the 
national  element  and  ignore  the  universal.  He  did  not  believe 
that  law  was  merely  the  outcome  of  unconscious  forces,2  in  which 
the  efforts  of  individuals  counted  for  little.  He  said,  no  doubt 
truly,  that  "  the  law  of  Nature  "  of  the  "  Aufklarung  "  period 
was  only  an  idealization  of  existing  conditions ;  but  he  also 
maintained  that  it  is  the  idea  of  universality  which  gives  the 
character  and  the  key  to  the  present  phase  of  law.  "  It  was  with 
a  correct  instinct  for  this  trend  and  drift  of  modern  law  that  the 
natural  law  school  proclaimed  its  doctrine  of  the  universality  of 
law  elevated  above  time  and  place  "  (Geist  des  romischen  Redds, 
i.  1 5) .  He  had  no  liking  for  a  purely  territorial  or  national  develop- 
ment of  law.  "  The  life  of  a  nation  is  no  isolated  existence  side 
by  side,  but,  like  that  of  individuals  in  a  State,  a  common  life,  a 
system  of  reciprocal  contact  and  influence,  peaceful  and  hostile, 
a  giving  and  taking,  borrowing  and  bestowing — in  short,  a  vast 
business  of  exchange  that  embraces  every  side  of  human  exist- 
ence."3 

1  See  his  essay  in  ScJierz  und  Ernst  on  "  Die  spekulative  Methode  in  der 
Jurisprudenz — Huschke,  Lassalle,"  p.  17. 

2  '  Das  Recht  ist  kein  Ausfluss  des  naiv  im  dunklem  Drang  schaffenden 
Rechtsgefiihls,   jenes  mystischen  Vorgangs,  welcher  dem   Rechtshistoriker 
jeder  weitere  Untersuchung  abschneiden  und  ersparen  wiirde,  sondern  es  ist 
das  Werk  menschlicher  Absicht  und  Berechnung,"  etc.  (Preface  to  JahrbUcher, 

3  See  Scherz  und  Ernst,  fourth  edition,  p.  341. 


EHERING  599 

Not  less  averse  was  he  to  the  "fanaticism  of  juristic  con- 
struction," which  "infers  that  whatever  does  not  suit  it  is 
impossible,  and  whatever  does  is  necessary."  He  is  constantly 
protesting  against  the  excessive  importance  given  to  mere  logical 
expressions  of  law  and  the  absurdity  of  treating  jurisprudence 
as  if  it  were  a  sort  of  legal  mathematics.  He  had  a  craving 
for  actuality  ;  he  could  not  abide  phantasies  severed  from  facts. 
It  was  characteristic  of  him  that  he  dismissed  the  brilliant  theories 
in  Lassalle's  System  der  Erworbenen  Rechte  with  the  remark  : 
"Speculation  begins  where  human  understanding  ceases.  To 
qualify  for  it  one  must  never  have  had  any  intelligence  or 
have  lost  it."1 

Ihering  had  obvious  defects.  We  miss  in  him  the  precision  or 
conciseness  of  Dernburg.  He  had  not  the  rare  combination  of 
gifts  as  an  investigator  of  Mommsen.  He  was  widely  read  in 
some  directions,  but,  as  one  of  his  biographers  remarks,  his 
erudition  was  one-sided.  Some  of  his  original  ideas  do  not 
bear  the  test  of  calm  examination  ;  they  seem  the  effusions 
of  a  brilliant  improviser  rather  than  the  results  of  a  careful 
balancing  of  evidence.  For  example,  he  mentions  the  circum- 
stance that  there  was  no  legal  profession  at  Rome  as  with 
us,  and  he  launches  into  a  diatribe  against  honoraria  as  the 
curse  of  modern  jurisprudence.  Honoraria  are  the  sources  of 
frivolous  and  interminable  lawsuits,  the  cause  of  the  existence  of 
jurists  devoid  of  taste,  without  love  of  their  art,  without  talents 
or  intelligence.  Money  soils  and  debases  their  profession.  The 
veteran  jurist  writes  in  the  same  strain  as  Ruskin  or  Tolstoy, 
and  yet  he  admits  that  honoraria  are  necessary.2  I  might  refer 
as  an  example  of  the  many  novel  ideas  which  he  threw  out, 
often  without  due  consideration,  to  his  theory  as  to  certain 
rights  not  belonging  to  or  residing  in  any  person.  It  was 
characteristic  of  this  impulsive  and  discursive  writer  that  he 
never  completed  his  two  chief  works.3 

Since  the  passing  of  the  Civil  Code  there  is  a  great  gulf  between 
jurists  such  as  Ihering,  whose  writings  were,  for  the  most  part, 
based  upon  or  suggested  by  Roman  law,  and  the  present  genera- 
tion ;  but  he  who  would  dig  deep  and  know  the  foundations  of 
law  must  still  turn  to  Ihering. 

1  Scherz  und  Ernst,  fourth  edition,  p.  34. 

2  Oeist  des  riJmischen  Bechts,  II.,  Part  1,  title  3,  c.  ii. 

3  His  theory  as  to  mistakes  in  contracts  is  embodied  in  the  German  Code, 
Articles  119,  120. 


INDEX 


ALARIC  II.,  makes  use  of  institutes  of 

Gaius,  10 
Albericus  GentiJis,  109-143 

acquaintance  with  Sir  Philip 
Sidney  and  the  Earl  of 
Leicester,  110 

father    of     modern    Inter- 
national Law,  109,  114 
his  conception  of  the  Law 

of  Nations,  118-121 
latter-day  appreciations  of, 

111,  112 
life  of,  109-112 
position  of,  as  a  jurist,  114- 

118 

value  of  the  work  of,  142,143 
views  of,  as  to  International 

relations,  121  et  seq. 
works  of,  112-114 
Alciati,  Andrea,  58-82 

as  a  reformer,  78-82 
founder  of  the  Comparative 
Method  of  Jurisprudence, 
58,  80-82 
life  of,  69-76 

writings  of,  and  their  char- 
acter, 76-78 
Alexander  Severus,   friendship  with 

Ulpian,  36,  37 

judicial  work  of,  37 

America,  influence  of  Montesquieu  in, 

437 
American  opinion  of  Lord  Stowell, 

522 

Augustine,  influence  of  the  De  Civi- 
tate  Dei  of,  on  the  Social  Theory  of 
Vico,  376,  377 

Augustus,  Emperor,  and  licensed 
Prudentes,  23,  24 


Austin,  opinion  of,  in  regard  to  Ul- 
pian, 42 
opinion  of,  in  regard  to  Savigny's 

Das  Rechl  des  Besitzes,  568 
Authority  of  the  Responsa  Pruden- 
tium,  24,  25,  27,  28 

Bacon,  Francis,  144-168 

and    the    law    of    nature, 

165,  166 
and    the    Sale    of    Judicial 

Offices,  148-151 
appreciation  of,  as  a  jurist, 

155 
argument    of,    in    Calvin's 

Case,  163-165 
argument  of,  in  Chudleigh's 

case,  161-163 
career  of,  at  the  Bar,  147, 

148 
his  work  in  the  Court  of 

Chancery,  167,  168 
influence  of,  as  a  constitu- 
tional lawyer,  166,  167 
intimacy  with  Hobbes,  195 
legal  works  of,  156-158 
Maxims  and  Digest  of,  151- 

153,  159-161 

Bacon,  Sir  Nicholas,  144,  145 
Bartolus,  45-57 

and  the  Glossators,  47,  48 
authority  of,  50,  51 
compared  with  Ulpian,  45 
influence  of,  on  the  theory  of 

Statutes,  52-55 
lucerna  juris,  xxiii 
personal  history,  48-50 
the  teaching  of,  51-55 
works  of,  55,  56 
601 


602 


INDEX 


Bartolus,  works  of,  the  influence  of, 

at  the  present  day,  56,  57 
Beccaria,  Caesar  Bonesana,  Marquis 

di,  505-516 

appreciations  of,  507-510 
his    essay   on    Crimes    and 

Punishments,  506,  507 
influence  of,  510,  514-516 
Ben  Jonson,  friendship  with  Selden, 

186,  187 

his  lines  on  Selden,  188 
Bentham,  Jeremy,  532-543 

his    conception    of    justice, 

200 

his  debt  to  Beccaria,  513 
his  ignorance  of  legal  his- 
tory, 532,  533 

his  ignorance  of  Roman 
and  Continental  Law, 
533,  534 

his  influence,  542,  543 
his    influence    on    criminal 

law,  540,  541 
on  law  of  evidence,  533 
on  Montesquieu,  437  note 
on  reported  cases  of  English 

law,  534 

Brown,  Mr.  Jethro,  on  Hobbes,  217 
Burke,  Edmund,  Bentham's  meeting 

with,  535 
Bynkershoek,  xxii,  390-416 

his  method  of  treatment,  391, 

392 

his  views  as  to  what  is  the 
basis  of  International  Law, 
396-398 

outline  of  life,  390 
relation  of,  to  his  predecessors, 

392-396 

summary   of  views   on   various 
subjects  connected  with  Inter- 
national Law,  398—416 
works  of,  390,  391 

Calvin's  Case,  153,  163-165 
Cantu,  Caesar,  on  Beccaria,  511,  512 
Caracalla  and  Geta,  struggle  between, 
33 


Caracalla  and  Geta,  Civitas  Romana 
conferred  on  freeborn  subjects 
of  Rome  by,  21 
murder  of  Papinian  by,  20 
Chitty,  Mr.  Joseph,  on  Vattel,  477 
Chudleigh's  Case,  161-163 
Code    Napoldon,    Savigny    on    the, 

575-578 
Codification  of  English  law,  Bacon's 

plea,  158-160 
of  French  law  by  Colbert,  260- 

280 
of   German  law   advocated  by 

Thibaut,  575 
Savigny  on,  579  et  seq. 
views  of  Leibnitz,  296,  297 
Coke,  Hobbes'  criticism  of,  204,  211, 

212,  215,  216 

Colbert,  Jean  Baptiste,  248-282 
life  of,  252-259 
work  of,  259-280 
Commentators  of  the  Middle  Ages, 

48,  65-67 

Consolato  del  Mare,  414,  415 
Court  of  Chancery  and  its  corruption, 

148-151 
Crown   ordinances   in    France,   456, 

457 
Cujas,  Jacques,  83-108,  564,  565 

and  the  Renaissance,  85-89 
accomplishments  and  meth- 
ods as  a  lecturer,  94 
contemporaries  of,  102-106 
life  of,  89-94 
method  of,  98-102 
study  of  law  in  France  be- 
fore, 83-85 

works  of,   and  their  char- 
acter, 95 
works  of,  and  their  result, 

107,  108 

Customary  law  of  France  after  the 
sixteenth  century,  450-456 

Desiderata  of  Leibnitz,  xxi,  296 
Doctor  and  Student    passage  on  the 

law  of  nature  cited,  209,  210 
Dumoulin,  Charles,  105,  106,  458,  459 


INDEX 


603 


English  law,  development  of,  xxii 
Evolution  of  law,  xxiv 

Gaius,  1-16 

conjectures  as  to  his  identity, 

2-5 
conjectures  as  to  his  nationality 

and  vocation,  5,  6 
discovery  of  Institutes  by  Nie- 

buhr,  12,  13. 

evidence  as  to  date  of,  4,  5 
legal  works  of,  8,  9 
present-day  estimate  as  to  the 

value  of,  14-16 

testimony  of,  a's  to  the  nature 
and    effect    of    the    Responsa 
Prudentium,  25,  26 
works  obtain  the  force  of  law, 

8,  9 
Gentilis,    Albericus.      See   Albericus 

Gentilis 
Gibbon,    opinion    of    Montesquieu, 

436,  437  note 

Glossators,  the,  11,  47,  48,  62-65 
Grimm,  Wilhelm,  on  Savigny  as  a 

teacher,  566 
Grotius,  Hugo,  169-184 

character  of,  177,  178 

death  of,  176,  177 

De  Jure  Belli  et  Pads  of, 

178-182,  393 

influence  of  De  Jure  Belli  et 
Pads  of,  on  Vico,  362, 
363 

early  precocity,  170,  171 
exile      and      residence      in 

France,  174-176 
religious  tendencies,  172-174 
school  of,  394 
works  of,  182-184 
Guenoux,  M.  Charles,  on  Savigny  as 

a  teacher,  567 
on  Savigny's  Das  Recht 
des  Besitzes,  570 

Hadrian,  Rescript  of,  concerning  the 

Responsa  Prudentium,  24,  25 
Hegel,  594,  597,  598 


Heliogabalus,  Emperor  of  Rome,  and 

Ulpian,  35 
Hobbes,  Thomas,  195-219 

and    the     construction    of 

written  law,  214,  215 
and  the  law,  212-217 
as  a  jurist,  217-219 
criticism  of  Coke,  204,  211, 

212,  215,  216 
intimacy  with  Bacon,  195 
obligations   to   Selden   and 
Christopher  St.  German, 
208 

outline  of  life,  195,  196 
Social  Philosophy  of,  195,196 
the  lawyer,  203,  204 
Homeric  Poems,  Vico  on  their  origin, 

388 

Hugo,  Gustave,  565-567 
Huschke,    Eduard,    theory   of,    con- 
cerning Gaius,  6,  7 
Hypothetical  Cases  of  the  prudenies, 
22,  23 

Ibn  Khaldoun,  his  view  of  history, 

377,  378 
Ihering,  590-599 

and  Gaius,  15,  16 

his  Geist  des  Romischen  Rechts, 

445,  446 
influence  of,  592 
on    the    Theory    of    Possession, 

596,  597 
the  last  of  the  Romanists,  591, 

592 

works  of,  592-597 
Imperial  Rescripts,  Papinian  drafts, 

18 
Institutes  of  Gaius,  8,  9 

character    and    nature    of, 

13,  14 

International  Law,  Bentham  on,  541 
summary  of  Albericus  Gen- 

tilis's  views  on,  118-142 
summary  of  Bynkcrshoek's 

views  on,  398-416 
summary  of  Zouche's  views 
on,  230-245 


604 


INDEX 


Jefferson,  Thomas,  President  of  the 

United  States,  437,  443 
Jerome,  epistles  of,  written  over  the 

text  of  the  Institutes  of  Gaius,  12 
Judicial  Offices,  Sale  of,  in  the  six- 
teenth century,  148-151 
Jurisprudence,    decline    of    Roman, 
after  Ulpian's  death,  40,  41 
Leibnitz's   conception   of,    298- 

301 

Mittermaier  and  the  compara- 
tive school  of,  560 
Montesquieu  and  the  historical 

school  of,  434,  435 
psychology  and,  xxiii 
Savigny  on  the  object  of  the 

historical  school  of,  580,  582 
sociology  and,  xxiii 
the  comparative  school  of,  439, 

440,  444 

Vico  on  the  value  of,  358 
Justinian,  Digest  of,  42,  43 

incorporation  of  works  of 
Ulpian  in  the  Institutes 
of,  40 

Kant,  and  the  laws  of  Nature,  202,203 

Law  and  religion,  xxiv 
Law  of  Nature,  course  of  develop- 
ment of,  289-293 
Doctor  and  Student  and,  2Q9, 

210 

explained  and  expounded  in 
Plowden's  Reports,  205- 
207 

Francis  Bacon  and,  165,  166 
Grotius  and,  180,  181 
Hobbes  and,  197-202 
Kant  and,  202,  203 
Pufendorf  and,  294-307 
Selden  and,  208 
Ulpian  and,  41,  42 
Vattel  and,   488-490,  494- 

496 

religious  origin  of,  xxiii 
Lecky,  W.  E.  H.,  on  Beccaria,  513 
Leges  Barbarorum,  10,  59,  60 


Legis  actiones,  26,  27 
Leibnitz,  283-304,  xxiii 
as  an  historian,  302 
as  an  international  lawyer,  301, 

302,  395 

as  a  jurist,  298-301 
as  a  politician,  302,  303 
a  "universal  reconciler,"  298 
character  of,  303,  304 
criticism  of  Pufendorf,  292 
aesiderata,  catalogue  of,  xxi,  298 
Law  and  Philosophy  of,  292 
legal  works  of,  287-292 
Leminier,  M.,  on  Beccaria,  508 

on  Cujas,  564 
Lesley  Stephen,  Sir,  on  Hobbes,  195, 

196,  197 

on  Rousseau,  429  note 
Lex  Citationum  of  Theodosius  and  the 

Responsa  Prudentium,  28,  29 
Livy,  Vico  on,  372 

Mackintosh,   Sir  James,   opinion  of 

Grotius's  De  Jure  Belli  et  Pads,  181 

Maine,  Henry,  on  Montesquieu,  437 

on  the  value  of  Roman  law,  386, 

387 
Mittermaier,  544-560 

outline  of  life  of,  544-548,555-559 
remarks  of,  on  English,  Scotch, 
and  American  Criminal  Pro- 
cedure, 550-553 
teaching  of,  559 
works  of,  548-550 
Mommsen,  Theodor,  588 

theory  of,  concerning  Gaius, 

5,  6 

Montesquieu,  417-446 
Bentham  on,  437  note 
chief  works  of,  420 
foreign  travel,  424-426 
his  description  of  the  origin  and 
development  of  his  Spirit  of 
Laws,  427 

influence  of,  at  present  day,  417 
influence  of  his  Spirit  of  Laws, 

435-438 
outline  of  his  life,  418-420 


INDEX 


605 


Montesquieu,     speculations     as    to 
views  of,    regarding    present- 
day  conditions,  440-445 
theories  of,  427,  428 

Napoleon  and  Montesquieu's  Spirit 

of  Laws,  438 
Nationality  and  Domicile,  Zouche  on, 

233,  234 
Niebuhr,  discovery  of  Institutes  of 

Gaius  by,  12,  13 

Papinian,  17-31 

excellence  of,  as  a  jurist,  21 
honours  conferred  on,  18 
Imperial  Rescripts  and,  18 
Qucestiones  and  Responsa  of,  19 
relationship    to    Septimius    Se- 

verus,  17 
the  Feast  of,  30 
Persian  letters  of  Montesquieu,  421- 

424 

Plowden,  Edmund,  204,  205 
Pollock,     Sir     Frederick,     and     the 

Doctor  and  Student,  210 
Pothier,  447-476 

and  the  Code  Napoleon,  576,  577 
his  reconstruction  of  the  Pan- 
dects, 464,  465 
method  of  teaching,  466 
outline  of  life  of,  447,  449 
summary  of  his  works,  467-469 
Traite  des  Obligations  of,  472^75 
Prudentes,  the,  and  their  hypothetical 

cases,  22,  23 
and    the    licence    of    Emperor 

Augustus,  23,  24 
both  teachers  and  counsel,  27 
conflicts  of  opinion  between,  28, 

29 

Rescript  of  Hadrian  as  to,  24,  25 
testimony  of  Gaius  as  to,  25,  26 
Theodosius  and,  28,  29 
the  value  of  the  work  of,  30,  31 
Prussian  Landrecht,  Savigny's  criti- 
cism of,  578,  579,  581 
Pufendorf,  305-344 

chief  works  of,  308-311 


Pufendorf,  his   De  Jure  Naturae    et 

Gentium,  310 
his  theory  of  natural  law,  311 

et  seq. 

Leibnitz's  criticism  of,  292 
life  of,  305-347 
on  treaties  of  peace,   alliances, 

and  other  conventions,   338- 

340 
opinion  of,  and  his  works,  341- 

343 

Quaestiones  and  Responsa  of  Papinian 
19 

Reddie,  Dr.,  on  Savigny,  584,  585 
Robespierre  and  Montesquieu's  Spirit 

of  Laws,  438 
Robinson,     Dr.,     reports     of     Lord 

Stowell's  decisions,  521,  522 
Roby,  Dr.,  587,  588 
Roman  jurisprudence  and  its  decline 

after  Ulpian,  40,  41 
development     of,     by     the 

jurists,  22 

in  the  East  after  the  death 

of  Justinian,  10,  11,  58,  59 

in     the     West     after     the 

death  of  Justinian,  11,  12, 

59-62 

Renaissance  of,  67-69 
revival   of,    in   second   half 
of  the  eleventh  century, 
61,  62 
study  of,    in  Middle  Ages, 

47 
Romilly,  Sir  Samuel,  515 

Savigny,  Frederick  Carl  von,  445, 
561-589 

accepts  Chair  of  Law  at  the  Uni- 
versity of  Berlin,  572 

and  Ulpian's  theory  of  /us 
Naturale,  41,  42 

early  education,  562 

his  capacity  as  a  teacher,  566, 
567 

his  place  as  a  jurist,  585-589 


606 


IXDKX 


Savigny,  his  work  on  the  Right  of 

Possession,  568-570 
on  the  Code  Napoleon,  575-578 
on  the  history  of  Roman  law 
in     the     Middle    Ages,    573- 
575 
treatment  of  Roman  private  law, 

583,  584 
Selden,  John,  185-194 

birthplace  and  early  years, 

185,  186 

his  chosen  motto,  189 
living  laborious  days,   187, 

188 
monograph  on  the  Judicial 

Combat,  187,  188 
on  the  Law  of  Nature,  208 
opinion  of,  concerning  mar- 
riage, 191 

political  life  of,  189 
sketch  of,  by  Lord  Claren- 
don, 189 
the  Society  of  Antiquaries, 

186,  187 

wit  and  wisdom  of,  192,  193 
works  of,  188,  189 
Septimius    Severus     and    Papinian, 

17 
Social  Contract,  the,  197,  199,  200, 

370 
Sociology,  375,  376 

and  jurisprudence,  xxiii 
Spirit  of  Laws  of  Montesquieu,  427 
reasons  for  its  great  influ- 
ence, 431-434 
Stowell,  Lord,  517-531 
life,  517-521 

on  freedom  from  search  of 

convoyed  ships,  525,  526 

on  illegality  of  trading  with 

enemy  during  war,  527 
on  slavery,  524,  525 
on  the  Jewish  law  of  mar- 
riage, 523,  524 
on  the  Scottish  law  of  mar- 
riage, 523 

on  trade  domicile  in  war, 
527-529 


Theodosius,  Emperor,  publishes  his 

Lex  Citationum,  28,  29 
Theory    of    Statutes,    the,    as    pro- 
pounded by  the  Post-Glos- 

sators,  53-55 
the  influence  of  Bartolus  on, 

52-55 

Thibaut,  575,  580 
Thirty  Years'  War,  the,   227,    394, 

395 

Thucydides,  Vico  on,  372 
Twelve  Tables,   the,   Vico  on  their 
origin,  387 

Ulpian,  32-44 

banished  by  Heliogabalus,  35 
compared  with  Bartolus,  45 
decline  of  Roman  jurisprudence 

after  the  death  of,  40,  41 
friendship   with   Alexander   Se- 
verus, 36,  37 

literary  activity  of,  33,  34 
political  conditions  of  his  age, 

32,33 

publishes  his  treatise  Ad  Edio 
tum  and  Libri  ad  Sabinum, 
33,  34 

qualities  as  a  jurist,  38,  39 
style  of  the  works  of,  39,  40 
theory  of,  as  to  lus  Naturale, 
41-43 

Valentinian  III.  and  Gaius,  8,  9 
Vattel,  477-504 

examination  of  the  Observations 

of,  480-491 

on  sovereignty,  496-502 
on  the  end  and  aim  of  Being, 

482 

outline  of  life  of,  478-480 
views  on  international  law,  502- 

504 
views  on  the  law  of  Nature,  488- 

490,  494-496 
Vico,  345-389 

academic  speeches  of,  356-362 
his  juristic  and  moral  philosophy, 

362 


INDEX 


607 


Vico,  his  social  theory,  367,  368,  376, 

378 

life  of,  348-352 
on  civil  law,  369,  370 
on  history,  371-374,  381 
on  the  origin  of  languages,  380, 

381 
state  of  Naples  at  birth  of,  346, 

347 

the  religion  of,  353,  354 
the  teaching  of,  354,  355 

Wolff,  M.  le  Baron  de,  criticism  of,  by 
Vattel,  481^86 


Zeitgeist,  the,  xxi 
Zouche,  220-247 

and  Roman  law,  225,  226 

method  and  general  treatment, 
227-229 

outline  of  his  life,  220 

relation  of,  to  his  age,  226,  227, 
393,  394 

relation  of,  to  his  English  pre- 
decessors, 222-224 

value  of  his  work,  245-247 

views  on  International  Law,  230- 
245 

writings  of,  221,  222 


Date  Due 


Library  Bureau  Cat.  No.  1137 


A     001  068  451     2 


